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Philosophy of Law Notes

Vena V. Verga

PHILOSOPHY OF LAW NOTES


ATTY. VILLAREAL
PHILOSOPHY AND LAW
Perfecto Fernandez
Philosophy deals with thoughts rather than external action.
Refers to law as a special branch of learning and inquiry, in the sense of a legal
system.
4 Central Problems
1.) What is the nature of law?
2.) What is the distinguishing criterion of law?
3.) Does an unjust law remain a valid law?
4.) What are the ends or ultimate goals of law?
Nature of Law
Expression of ideas in Philosophy
1.) Empirical propositions based on sense experience. The Conveyance of
a fact and is subject to factual verification.
Example: the Sky is blue
2.) Normative propositions function as guides or norms of human conduct.
Conveyance of a command. There is a value judgment.
Example: Thou shalt not kill.
Honesty is the best policy (this is a normative proposition
hidden in an empirical-like form. Once you analyze it, according to the
article, it comes out as a value judgment, since it is the judgment of one
person to state that honesty is the best policy, which means that the the
saying Honesty is the best policy becomes BE HONEST!)
- Legal propositions are neither a part of science nor can they be validated by
science. Rules of law are Normative in character.
Distinguishing Criterion of Law
how we distinguish rules of law from rules that are not law. We use the notion
of legal validity.
Elements of Identification
1.) Element of Coercion by sovereign authority
2.) Norm of validity by which rules belonging to system are identified
Validity is a relational concept, the problem in every case is whether or not the rule
in question is valid in relation to a particular system. Thus question of validity cant
be solved in abstract, but only in context of a particular legal system.

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Criteria of identification = Rules of recognition (Hart)


Example: 1. Judicial adoption a secondary
rule of recognition
2. Approval of a law by the
president a rule of
recognition
Unjust Law as valid law

Positivist view of law affirms that rules of law remain law, regardless of
their moral invalidity .
Natural law theory - maintains that law must conform to basic moral
standards and that a law which is unjust is not a law.

Perfecto Fernandez believes that natural law doctrine is based on fallacy, where a
moral norm may actually be an imperative/normative command and so is not based
on sense experience/empirical proposition.
Example. Honesty is the best policy It is my judgment that there are good
reasons for being honest and it is my desire that you accept these reasons and BE
HONEST.
Thus, it is language that gives preferences (like how one person thinks honesty is
the best policy) a semblance of concreteness and universality.
Moral principles entail:
1.) Private and individual judgments as to what is desirable
2.) The desire that others conform to judgments in their conduct. (like the
honesty example)
Thingification the moral judgments of private individuals are made to appear as
essential attributes of the universe.
Note: Following Hume and Kant, no contemporary philosopher seriously entertains
the view that moral values are existing as facts of nature.
Philosophy vindicates the practical grounds for rejecting conformity with moral
standards as a requirement for legal validity.
Criteria of validity or rules of recognition are Empirical.
Moral Standards as shown by philosophical analysis are essentially judgments of
individuals, hence subjective and variable.

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When we call a law unjust and are criticizing a rule in the legal system, we do so on
the basis of a rule in a different system, a system of morality.
2.

Ends of law for the present and foreseeable future, law has the modest but crucial
task of providing the social conditions of security and liberty essential to human
achievement.

3.

One Major Point in the article: Perfecto Fernandez seems to believe that the natural
law theory, which is based on moral standards, is a fallacy.

IS LAW NECESSARY
Dennis Lloyd

B.

1.
2.

Main Thesis: The answer to the question lies on your perception of mans nature.
Whether or not man is in nature good or evil would give us an answer to the
question of necessity of law.
I.
A.

B.

II.
A.
1.
2.
B.

III.

1.

The Nature of Man


Man is by nature evil
Such nature should be curbed, if not, it will lead to total destruction of
man.
Law then is the indispensable restraint upon the forces of evil.
Anarchy or absence of law is the supreme horror to be warded of.
Man is by nature good.
People who believe in this nature of man seek to find the sources of the ills
of mans present condition.
The defect in mans social environment is the true cause of the evils, which
afflict him.
The legal system is the source of mans tribulations.
The Law and the forces of evil
Whether you see man as by nature evil or good, he still needs laws.
Mans nature is evil thus no social progress could be attained without
the restraints of penal laws.
Man is good but due to sin, corruption or some internal weakness,
mans original and true nature had become distorted and thus required
for its control the rigors of a primitive system of laws.
Idyllic Primitive Scene refers to the golden ages where everything was
in order no external system of legal rules, life is simpler.
This served as a pattern for a movement toward a return to nature -going back to mans primitive, unspoiled nature where there is a happier
society in which uncorrupted natural impulse will replace coercive regimes.
Mans nature is evil
China (Legists) argued that mans nature was initially evil and that
the good ways in which men often acted were due to the influence of

C.

D.

1.

2.

3.

the social environment, particularly the teaching of rituals and the


restraints of penal laws.
India (shastra) men are by nature passionate and covetous and that
if let to themselves, the world would resemble a devils workshop
where the logic of the fish (means: big ones would eat the little ones)
would reign.
Western Europe
(a)
Bodin original state of man was that of disorder, force, violence
(b)
Hobbes the life of primitive man was a state of perpetual
warfare, where individual existence was bruttish, nasty and short
(c)
Hume without law, government and coercion, human society
could not be exist and so law is a natural necessity of man.
(d)
Machiavelli men are bad and will not observe faith towards you
(traitors), you should not trust them.
The Golden Age
Ovid man dont need laws because it is written in his nature, yet
everyone is safe because conscience is their guard.
Seneca in the primitive innocence/state, men lived together in
peace and happiness, having all things in common, there is no private
property; no slavery, no coercive government; no corruption; everyone
is free and equal.
This primitive innocence was a result of ignorance rather than virtue
This ignorance is the source of social evils later on. Such social evils
necessitated an introduction of regime of law
Corruption = a product of avarice, fall of man
Judeo-Christian
Paradise is the equivalent of the primitive innocence
The necessity of human law and coercive state, private property and
slavery was derived from mans sinful nature, which resulted from the Fall.
Law was a natural necessity after the Fall to mitigate the effects of sin.
Consequences of the fall:
(a)
Family represented the coercive domination of the male against
the freedom and equality of the primitive paradise.
(b)
Slavery sins is a fit subject of enslavement.
The theory of law
Agustine
State-law and coercion are not themselves sinful but are part of the divine
order as a means of restraining human vices. Due to sin.
The hope of mankind is not in the sphere of social reform but rather by the
attainment of a commonwealth of Gods elect, a mystical society, which
would replace the existing regime dominated by mans sinful nature.
Law is a natural necessity to curb mans sinful nature.
By 13th century
There was a change in emphasis due to Aristotelian influences
Mans nature might be corrupt and sinful but he still possessed a natural
virtue which is capable of development (Aristotles natural development of
the state from mans social impulses)
Aquinas

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E.

1.

2.

3.

4.

5.

6.

7.

F.

1.

States is not a necessary evil but a natural foundation in the development


of human welfare.
Law is a beneficent force, not only in restraining evil but also for setting
him upon the path of social harmony and welfare.
Law then is not an negative force but a positive instrument for realizing
those goals towards which mans good or social impulses tend to direct
him.
Man is by nature good (anarchist viewpoint)
The concept of law is based on a wistful primitivism, nostalgia of the
primeval past.
Plato
pins his faith in a system of education which will not only produce adequate
rulers but will also serve to condition the rest of the population to the
appropriate obedience.
Adam Smith
laissez faire; free play of economic forces which could be assumed to work
towards ultimate harmony.
coercive law may be used to protect private property (an indispensable
feature of free market)
Godwin
evils of the society arose not from mans corrupt or sinful nature but from
effects of oppressive human institutions.
Man is capable of unlimited progress, only coercive institutions and
ignorance stand in the way.
Voluntary cooperation and education would enable all law to be abolished.
Bakunin and Kropotkin
State, law, coercion and private property were the enemies of human
happiness and welfare.
Tolstoy
Man is universally good; there is no need for law.
Maude
Remove the law and induce men to believe that no fixed code or judgment
should exist; and the only people who will be able to get on at all decently
will those who follow the traditional way of life.
Marx
Law is nothing but a coercive system devised to maintain the privileges of
the property-owning class.
By the revolution of a classless society would be brought into being, the
law and the state would wither away as being no longer needed to support
oppressive regimes.
Looks forward when social harmony will be attuned to the natural goodness
of man, unimpeded by such environmental snares as the institution of
private property.
Innate Goodness and the price of Civilization
Man at the primitive level is innately good and that it is the social and
political organization of civilized life, which has introduced violence, and
disorder which led to systems of legal coercion.
Elliot Smith

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2.

most of the friction and discord of our lives are obviously the result of such
exasperations and conflicts as civilization creates.
The artificial aim, which is the object of envy and malice, is the source of
conflict.
Herbert Read
The anarchist conceives society as a balance or harmony of groups; the
only difficulty is their harmonious interrelation.
Universal decentralization of authority and simplification of life is essential.
Anarchism means a society without arkhos (ruler); it does not mean a
society without laws and does it does not mean a society without order.
In the simplest form of society, some system of rules is necessary (ex.
rules on family relationship, food-gathering, mating etc.)
Such society without rules is not just a society without order but the very
negation of society itself.

PERSISTENT QUESTIONS
H.L. Hart
I.
II.

Law is a prophesy prophesy of what the courts will do is the law itself.
1.
2.
3.
4.
5.

III.
A.

B.

C.

Composition of Legal systems


rules forbidding or enjoining certain types of behavior under penalty.
Rules requiring people to compensate those whom they injure in
certain ways
Rules specifying what must be done to make wills, contracts or other
arrangements which confer rights and create obligations
courts to determine what the rules are and when they have been
broken, and fix punishments
a legislature to make rules and abolish old ones.
Three recurrent Issues
How do law and legal obligation differ from, and how are they related to,
orders backed by threats
The existence of laws mean that certain kinds of human conduct are no
longer optional but in some sense obligatory
Laws backed by threats is the essence of law (Austin)
How do law and legal obligation differ from, and how are they related to,
Moral rules impose obligations and withdraw certain areas of conduct from
the free option of the individual to do as he likes.
Laws contains elements closely connected with certain aspects of morality.
Justice united law and morality because justice is both a virtue specifically
appropriate to law and most legal of all the virtues
Law then is a branch of moraluty or justice and that its congruence with
the principles of morality or justice rather than its incorporation of orders
and threats is of its ESSENSE (definition shared by legal positivists and
natural law)
What are rules and to what extent are laws an affair of rules.

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Rules are different from mere convergent behavior. The latter need not
make use of words such as must, ought, and should, which are used in
rules.
All rules have a penumbra of uncertainty, where the judge must choose
between alternatives.

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D.

LAWS, COMMANDS AND ORDERS


H.L. Hart
Thesis: Austins command law theory is not enough to define the essence of law,
Hart provides features of the law that would make Austins law truly a law.
I.

II.

III.

1.
2.
3.

IV.
A.

B.

Does law stem from a wish?


A wish that is expressed in an imperative mood is an order. The person
addressed should conform to the wish expressed.
Austins Command Law Theory
Laws are orders backed by threats.
According to Hart, this is nothing more than a gunman coercing a person to
give him his purse. To command is characteristically to exercise authority
over men and not power to inflict harm and though it may be combined
with threats of harm, a command is primarily an appeal not to fear but to
respect for authority.
Obedience is compliance to these orders.
In these cases, the person who has a power to give orders has a
POSITION OF PRE-EMINENCE
Similarities of statutes/laws and commands backed by threats:
it indicates a general type of conduct
applies to general class of persons who are expected to see that it
applies to them and to comply with it.
The usual direction of implication of these laws: if general directions
are not obeyed, individuated face-to-face directions have secondary
place.
Features of Law
General
It extends to all person within its territorial boundaries
All members within the same class are within the range of law except when
a narrower class is indicated.
Commands backed by threats are addressed to particular person.
Laws must be general in order not to defeat the legislators purpose.
Continuing belief in the consequence of disobedience
Commands given by one generally obeyed should be followed not only on
the 1st promulgation of order but continuously until the order is withdrawn
or cancelled.
This is missing from Austins command theory.

General Habit of obedience


Lacking in the gunman situation.
Concept of general orders backed by threats is closer to a penal statue
enacted by the legislature but not laws.
Supremacy within its territory and independence.
This is exercised by the sovereign, which is generally obeyed, supreme and
independent.

SOVEREIGN AND SUBJECT


H.L. Hart
Thesis: What accounts for the relationship between the subject and the sovereign?
The habit of obedience does not answer this question.
I.

II.

Law backed up by threats is not sufficient in defining what a law is.


Habit of obedience a person or body of persons whose orders the majority of
the society habitually obey and who does not habitually obey any other person
or persons.
This doctrine asserts that in every human society there exist a relationship
between the subject and the sovereign and if this structure is present, we
speak of a society.
The habit of obedience and the continuity of law

Obedience deference to authority and not merely compliance with orders


backed by threats

However, the assumptions is that laws are backed up by threats.

Criticisms to the habit of obedience:


1.
It is hard to characterize obedience to the Rex as a habit or habitual
since there is a fact of punishment if said orders were disobeyed.
2.
It is possible that there is merely a convergent behavior among the
subjects. Convergent behavior, all that is needed are personal acts of
obedience.
3.
if people are merely obeying because of habit of obedience, and not
even having a sense of whether what they are obeying, proper or
legitimately demanded, such as situation is too simple to ever to have
existed, not even in primitive society.
4.
habit of obedience does not render probable the continuity of obeying
the successor of a rex when he dies. Habit of obedience does not
make sure the continuity in obeying the laws.
Note: In explaining continuity of the law, there are use of expressions such as
right to succeed, rule of succession etc, which are terms that are not present in
the simple legal world of the rex.

Conclusion:

the idea of habit of obedience fails to account for the continuity of legal system
(mere habits of obedience cannot confer on the new legislator any right to
succeed).

Habit of obedience does not make sure that the new legislators orders will be
obeyed (for people must at least accept the rule under which the new legislator
is entitled to succeed in order for them to obey the new sovereign)

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III.
A.

Habit and Rules:


Common Feature: in both cases, there should be uniform behavior which
an observer can record; repeated actions by most of the group.
B.
salient features:
Habit
Rules
a) convergence of behavior, a) convergence is not
enough for a group to have enough to constitute rules
a habit
b) any deviation need not b) deviations are lapses and
be criticized
faults that must be dealt
with
pressure
for
conformity; deviation from
standard must be founded
on good reason for making
it
c) when habit is general, c) for social rules to exist,
this generality is observable one must look upon the
in the behavior of the behavior in question as a
group. Members need not general standard to be
know that such general followed by the group as a
behavior exist.
whole. Social rules has an
internal aspect.
C.

D.

E.

Crucial features of rules which distinguish it from habits


should be reflective of the attitude to certain patterns of behavior as a common
standard
this should display itself in criticism (self-criticism)
demands of conformity
in acknowledgments that such criticism demands are justified, rules use
normative terminology such as ought, must, wrong.
Effects of considering Rex words as rules:
1.
this now transforms the situation as habit of obedience.
2.
Such rules then will be accepted, the rex would not be specifying
things to be done but he will have a RIGHT to do this.
3.
there would not only be general obedience to his orders, but rather, it
will be generally accepted that it is RIGHT to obey him.
4.
He will now be a legislator and he would be bound by the rules he
makes.
5.
His words may now be considered standard of behavior and deviations
to it are open to criticism; justifies compliance.
Such rules shall explain the continuity of legislative authority because:
1.
they will be generally accepted by the group during the lifetime of the
Rex and after.
2.
Obedience will not longer be centered on the individual but to a class
of person such individual represents.

Conclusion:

- 5Even if Rex, whose orders are generally obeyed may be called a legislator, habits of
obedience to each succession of the legislators are not enough to account for the
RIGHT of the successor to succeed and for the consequent continuity of legislative
power because:
1.
habits are not normative; they cannot confer rights of authority to
anyone;
2.
habits of obedience to one individual cannot guarantee succession in a
class.
This supports the idea that habit of obedience brought about by the characteristic of
modern society (people know nothing more about the laws except that they are
laws to be followed which disobeyed would warrant infliction of punishment) leaves
the subject with no choice but to obey not because he knows the laws are good but
rather because he afraid of the penalties. This makes the habit of obedience a
WEAK DOCTRINE for failing to take into account the other active aspects like lawmaking, law identifying, etc.
IV.
Persistence of Laws

Witchcraft Act is an example of familiar legal phenomenon: statute enacted


centuries ago may still be law today.

This persistence of laws is something that cannot be achieved by mere habits of


obedience

Question is: is it possible to say that simple conception of orders backed by


threats show that persistence of law rests on habit of obedience:
Hobbes (echoed by Austin and Bentham) says that legislator is he, not by the
authority the laws were first made, but by whose authority they now continue to be
laws.
Explanation: The reason why past laws are still being followed at present is because
the present sovereign recognizes them as laws. Thus, a statute made by past
sovereign is not law until it is actually applied by the court in a particular case and
enforce with the consent of the new sovereign (THIS IS AN ABSURD IDEA). Again,
the idea of persistence of laws based on habits of obedience falls apart.
V.

Legal limitations to legislative power


In the theory of habits of obedience, it can be deduced that there is not such
habit on the part of the sovereign. (because there is no other power except
him; if he has a habit of obedience, then he would not be a sovereign)
This theory asserts then that there are no legal limits to the legislators power
to legislate. However, he may defer exercising such power to popular opinion if
he desires so.
Example of legal limits: the constitution
Rex may be subject to such limitations but it does not mean that he is already
obeying; he merely fulfills the conditions of making valid laws as provided for
the said limit.

LAW AND MORALS


Dennis Lloyd
Thesis: introduces the concept of natural law and legal positivism.

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I.

Law and Religion


Modern times: Laws are man made judge according in human terms.
Earlier ages: Laws was regarded as having a sanctity which was of divine origin

A.
1.
2.
3.
4.
5.

Characteristics of laws in the earlier times:


law, morality and religion were treated as inevitable interrelated and
can be traced to a divine lawgiver (10 commandments)
it owes direct origin from human sources but divine aspiration is
attributed to human lawgiver
treated as mythical, semi-divine, heroic figures.
Characteristic of Platos Laws: the merit of instituting laws
must be attributed to God.
The aura of authority of law roots from the feeling that law is rooted in
religion: There I MORAL DUTY TO OBEY

That laws depend for its validity on having some legal penalty (Austin) would
impress a believer of the classical notion of laws.
The story of Orestes illustrates the belief in divine intervention for offenses
against the laws and degree of flexibility in the administration of divine justice:
results from a system of polytheism where in one god might be set off against
another as to mitigate the rigour of the law.

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source of moral law rests in the authority of those whom can persuade
themselves and other of their inspiration
scriptures can only be interpreted by some people; there are limitless
interpretations
3.
justification of Credo quia absurdum one always resort to faith and
not to rationality.
rejection of an approved construction of the law is regarded as renunciation of
the will of God

GREEK INFLUENCES

powerful attachment to rationalism belief that the physical and moral order of
the world are based on rational universe.

Modern belief in scientific laws

Such belief in the human reason entails the idea of moral law of a rational kind
(derived from human reason)

Validity and existence of man-made laws are not directly controlled by a higher
law of reason

Tendency of Greek thought: to recognize human law, whether its origin in part
to divine or semi-divine, as possessing an autonomous position in human
society.
B.

The Moral duty to Obey the Law


Hebrews human law that contradicts divine law is invalid. Human
law should be obeyed only if it corresponds to the divine law.
2.
Greeks -- man has moral obligation to obey the law of the sate even if
he believed it to be wrong or immoral. (exemplified in Platos Crito
through the speech of Socrates: following the laws of the state is like
an agreement, no one can just break said agreement. The law even if
unjust must be followed because to live according to the law is the
highest good/morality.)

Plato refuted this idea: he argued for the identity of the law and
morality but the identity not based on blind faith but on human
wisdom and reason.

3 points in Greek position:


(a)
obedience to moral law is the highest morality
(b)
moral law, independent of state law may show that the human law
may be immoral or unjust
(c)
however, this moral law will never override the law of the state.
Note: the citizen can convince the state of its moral error, if he fails, then he is still
his bound to obey the law of the state.
1.

B.

Hebrew and Greek influences

HEBREW INFLUENCES

one God (rejected polytheism) which will dictate the moral pattern of all man
kind and would inflict punishment to those who would disregard his decree.

Kings are lawfully anointed by the Lord; enjoys divine sanctity

Moral law is revealed through prophets who establish a DIVINE ORDER OF


MORAL LAW: scope and decrees rested not on the affirmations of rulers and
priests but those individual chose by God

Man made laws cannot not stand validity against divine laws

Laws are equated with morality for the ONE TRUE LAW is the Law that
embodied Gods will.

LAW simply means the moral and religious law which is laid down by God or
developed by divinely inspired human beings

This can be found in the post-prophetic Jewish state and early stages of
Calvanism where Laws and morality are one and no recognition of laws can be
granted if it is lacking divine inspiration.

Thus, conflict between human laws and moral laws are resolved by treating all
valid human laws as mere expressions of the moral law.
DANGERS OF HEBREW CONCEPTION:
1.
triumph of rigid orthodoxy
2.
anarchy and imposition of certain individuals (such is the case of
Anapabaptist in Germany during the early time of reformation)

II.
A.

B.

The relation of law to morals


Hegel (influential to totalitarian regimes) There is moral duty to obey the
law and the individual cannot just convince the state that it is immoral or
unjust since the state itself represents the very embodiment of morality.
The individual is just submerged in the higher reality of the state which is
more superior in wisdom.
Democrats and Anti-totalitarians although there is moral duty to obey the
law, in case there is conflict between law and morality, morality both

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C.

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justifies and requires obedience (ex. Nazi regimes a positive law that
contradict moral law)

This brings reason why modern jurist believe that there can be no total
identity between law and morality.
Common territories between law and morality
(a)
both are concerned to impose a standard or conduct without
which human society will not survive.
(b)
Both use normative language
(c)
Both law downs duty or what man ought to do.

Where law and morals diverge


(a)
moral law may not be embodied in popular sentiment unlike
positive law
(b)
Moral law may create more evil if supported by positive law (ex.
Wolfenden Report: urging the offence of homosexual relations
between consenting male adults in private Lawrence vs, Texas,
to punish this would encourage more evil like blackmail)
(c)
Non-intervention of law: libertarian proposition of Mill: law should
not intervene in matters of private moral conduct more than
necessary to preserve public order and protect citizens.
How then can moral standards be ascertained? Appeal to the ordinary reasonable
man in the jury box (man on the Clampham Omnibus) (Mill)
IV.
Examples: bringing the law into contact with morality
A.
What degree if cruelty will warrant divorce? the test is whether the
conduct if so bad that the other souse should not be called upon to put up
with it.
B.
Ladies Directory Case: the jury may create new offenses from time to time
in accordance with the needs of public morals which vary from time to
time.
V.
3 vital aspects in which morality impinges upon the law

(b)

because morality is itself merely what the law lays down. This
idea is propounded by:
(1)
Hobbes there is moral duty to obey the law; morality means
nothing more than obeying the law
(2)
Hegel theory of moral superiority of the state over
individual thus individual can claim no higher right than to
obey the law of the state.
2.
to recognize than man-made laws and the moral law each enjoys a
realm of its own but moral law is a higher law and thus provides a
touch stone for the validity of merely man-made laws. Conflicts need
to be resolved in favor of moral laws (natural law theory).
Note: this may be said to be a matter which must be left between God and the
unjust ruler thus it is still the citizens duty to obey the law.
3.
There is the approach which treats the autonomy of each of the
spheres of law and morality and exclusive so that neither can resolve
questions of validity save in its own sphere (known as legal positivism)
(a)
validity of rules depend solely on legal criteria just as moral
validity can be applied in relation to a system of morality.
(b)
Those who support this view take a pragmatic view of moral law,
basing it on principles such as utility, expediency, tradition or
custom
(c)
Any conflict between the two cannot impugn the validity of manmade law or alter legal obedience.
(d)
Conflicts may be resolved in accordance with the dictates of ones
conscience.

III.

1.

the idea of guilt in criminal law is linked with the idea of moral
responsibility (morals then reinforce the authority of the law and duty
to render obedience to decrees)
2.
responsibility in law is treated as excluding the possibility of guilt if
there are circumstances of excuse which causes us to adjudge the
accused not morally implicated (ex. if the accused is insane, not
knowing between right and wrong)
3.
in deciding upon the punishment to inflict.
Note: this goes to prove that law needs, in order to enjoy full authority, to be
buttressed by moral convictions of the community law and morality are
interrelated.
VI.
Conclusion: Three main attitudes, which may be adopted towards
the possibility of divergence between laws and morals.
1.
law and morals must necessarily coincide whether because:
(a)
the moral law dictates the actual content of human law (Hebrews
or Calvanist theocracies) this leads to the proposition that in
effect, only the moral law is valid and nothing that contradicts the
moral law can be binding.

LEGAL ENFORCEMENT OF MORALITY


Kent Greenwalt
Central Question: Should legislature enforce morality?
Central theme: It is a need to avoid reductionist simplicities when questions are put
whether the law should enforce morality.
I.
A.
1.
2.

Legal enforcement of moral norms against causing harm


Morality will always include restraints against harming people.
H.L. Hart -- law and morality will constrain much of the same
behavior. That does not mean however that all aspects of morality that
concerns preventing harm to other will be enforced by law (ex. lies).
Joel Feinberg harms are setbacks to interest that are in some way
wrong.

Note: Principles guiding legal regulation must include moral judgments. However,
even if moral judgments infuses determinations of harms, it doesnt follow that legal
rules enforce reality because there are moral evils that of not include harms to
others which must not be regulated by law.
II.

Legal requirements to perform acts that benefit others (do you have a duty
to rescue others?)

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A.

- 8-

Performing acts that would benefit others is a moral duty yet, people may
abandon this moral duty and yet do not incur criminal or civil consequences
(no legal duty).
B.
Man has no legal duty to perform acts that is benefiting to others because
law should not enforce morality (unconvincing according to greenwalt).

In morality, there is big difference between act and omission, not so with
law.

People have general duties to act for the benefit of the public (pay taxes,
testify etc); there is not doubt then that people are required tom act to
avoid harm and to contribute to the common welfare.
C.
Those who support the idea of liability believe:
1.
others may do the job
2.
the need to help others is too vague
3.
such duty imposes inappropriately in the autonomy citizens
D.
Views on this problem:
1.
Consequentialist perspective --, these problems are matter of degree:
there is legal duty to help if it has only slight imposition to ones
projects.
2.
Deontological perspective Moral duty to help exist provided that it is
imposed by the law (if there is legal duty).
Ergo: imposing duties are unwise, but it involved no breach of any defensible
principle that law should not enforce morality.

2.

Offense at religious practices that causes no secular harm, cannot be a


basis for restriction in a country that recognizes religious liberty.
3.
Offense at non-religious practices because the practice violate some
peoples right ma not be a basis for restriction in a country that values
religious freedom
V.
requirements to refrain from acts others believe are immoral.
Question: Can legal restriction be justified because acts are regarded as immoral,
apart form harm (can legal enforcement of morality be justified?).
A.
Law should enforce morality:
1.
objective morality should be punished
2.
that a community properly punishes what it regards as immoral,
without more;
3.
that a community may preserve its moral structure without more
4.
people have a legitimate interest in preserving structures of life
familiar to them
5.
liberty in self-regarding matters may weaken a community and
dissolve bonds of other-regarding morality, to the detriment of the
people in general.

III.
requirements to refrain from acts that cause indirect har to others
On Liberty -- Mill wrote that the only purpose for which power can be rightfully
exercised over any member of the state, against his will, it to prevent harm to
others because when people harm others, this affects others through their
sympathy and interest.

When an action will certainly cause harms to others, such action shall be
the basis of regulation.

Future harms
(a)
consequentialist restraint in the initial stage is more effective
(b)
non-consequentialist man has right to liberty thus people should
not be restricted just because others lack control and will end up
doing harm.

When there is risk that one will become a burden to the society:
(a)
consequentialist: value of liberty might somehow be weighed
against likely cost
III.
Requirement to refrain from actions that hurt oneself.
A.
Mill supports non-restriction because a persons own good, wither
physical or moral is not sufficient warrant for society to exercise power
over him. In all personal conducts, his independence is absolute.

There greatest breach against someones autonomy involves coercion


against ones own rational, reflective judgment.
B.
John Feinberg someones own physical, pshychological or economic good
should not be a basis for criminal prohibitions against voluntary behavior.
IV.
Requirements to refrain from acts that offend others
Principles concerning offense:
1.
If the offended for not have a moral objection, behavior should be
allowed (Peoples liberty should be upheld)

VII.

VI.

Liberal democracy the state should be neutral among conceptions of the


good life, thus, the state has no business punishing objective morality but
behaviors damaging to others and to one-self may be punished (ex. having
sex with animals.)
Why does the law should enforce morality: because members of the
community have some interest in preserving forms of life familiar to them.
But then, the answer still depends on the communities depending on their
views about trust, morality etc.

NATURAL LAW THEORY


Brian Brix
I.

Traditional Natural Law Theory


Argues about the existence of higher law which is a standard by which
other laws are adjudged. This law like standard can be derived from divine
revelation, religious text, a careful study of human nature.

Themes: natural law is:


a. unchanging over time and does not differ in different societies
b. every person has access to the standard of this higher law by use of
reason
c. only just laws really deserve the name law
d. in definition of the term law, there infers the idea and principle of
choosing what I just and true.
A.
Classical Writers
The source of higher standard is inherent n the nature of things (a passive God)
Cicero

Provided for the themes of natural law (see above)

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- 9-

Ambiguity in the word natural (natural because: 1) derived from human reason,
2) accessible to out natural faculties or 3) derived or expressed in nature or 4)
combination of the 3)

D.
Perspective
Cicero, Aquinas and Grotius all concerned with what legislators and citizens and
governments ought to do or could do on good conscience.

B.
Early Church Writers
Source of higher standard is the divine being who actively intervenes in human
affairs

John Finnis

First Level: There are a number of distinct but equally valuable intrinsic goods
(that is things one values for their own sake) = basic goods
a) life (or health)
b) knowledge
c) play
d) aesthetic experience
e) sociability
f) practical reasonableness
g) religion

Second Level: Because there are variety of basic goods, with no hierarchy or
priority among them, there must be principles to guide choice when alternative
courses of conduct promote different goods (difference of Finnis with
utilitarianism. Utilitarian believe that all goods can be compare according to
their value in a single unit ex, in promoting happiness)

Morality then offers a basis for rejecting certain available choices; one choice
would remain (differ again with utilitarians: they talk of the best choice)

The move from the basic goods to moral choices occurs through a series of
intermediate principles (a.k.a BASIC REQUIREMENT OF PRACTICAL
REASONABLENESS)

Intermediate principles:
1.
end never justifies the means (where the chosen means entails intending
to harm a basic good)
2.
one should forma rational plan of life
3.
have no arbitrary preference among persons
4.
foster common good of the community
5.
have no arbitrary preference among the basic goods.

Law enters as a way of 1) affecting some goods and making it easier to obtain
goods

Persons have obligation to obey just laws (like Aquinas); laws which are unjust
are not law in fullest sense of the term, one has no obligation to comply.

Aquinas

Four different kinds of law: eternal law, natural law, divine law, human positive
law

Human law is derived from natural law.

Derivation aspects
(a)
sometimes natural law dictates what the positive law should be
(like logical deduction)
(b)
natural law leaves room fro human choice (derivation is through
determining general principles derivation in the sense of making
specific or concrete)

Characteristics of just positive law:


(a)
consistent with the requirements of natural law
(b)
ordered to the common good
(c)
law giver does not exceed its authority
(d)
law burdens are imposed on citizens fairly (like Rawls justice is
fairness)

Unjust laws failure with respect to any of the criteria; citizens have no
obligation to obey these laws. (unjust law in not law)

Interpretation of unjust law is not law


(a)
immoral law is not valid at all (Blackstone, Plato, Aristotle, Cicero,
Agustine)
criticism by Austin: such analyses of validity is of little value because even if an act
is valid under natural law, if it is prohibited by positive law, one will still be punished
for doing the said act.
(b)
unjust laws are not laws in the fullest sense.
Means that it does not carry the same moral force or offer the same reason for
action as law consistent with higher law

To say that unjust laws must not be obeyed because they are not laws in their
fullest sense is controversial: there are often reasons for obeying unjust laws:
(a) if the law is part of a generally just legal system
(b) public disobedience of the law might undermine the system
**Aquinas citizens are not bound to follow unjust laws if the law can be
resited without scandal or greater harm.
C.
Early Modern Europe
Grotius

A higher law against which actions of nations, law makers could be judged.

Separation of natural law from the divine being (already evident in the writings
of Gregory of Remini)

We all have reason; this alone makes us obey natural law.

II.

Modern Natural Law


Focuses more narrowly on the proper understanding of law as a social
institution or a social practice.
A response to legal positivism.

A.
B.
1.

Fuller no sharp separation between law and morality; rejected the oneway projection of authority (government makes laws; citizens obey; law is
a form of guiding people; a means to an end
Internal morality of law or principles of legality (series of requirements): in
order to consider something law, it must meet a certain criterion or
threshold (based on function and not content):
law should be general;

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2.
3.
4.
5.
6.
7.
8.

must be promulgated that citizens might know the standard to which


they are being held;
non-retroactivity;
must be understandable;
not contradictory;
should not require conduct beyond the abilities of those affected;
remain relatively constant;
should be congruence between the laws announced and their actual
administration.

- 10 -

B.

**His theory is procedural, not substantive natural law


DWORKIN difference between legal rules and legal principles (moral propositions
are grounded past official acts produces different results

MOORE: legal terms and moral concepts all have meaning determined by the way
the world is, not by beliefs
WEINREB: legal formalism: law has immanent moral rationality; one can speak of
essece of nature of law in various parts of doctrines within the law

C.

GERWITH engaging in practical reasoning commitment to moral principles


Bay Leveld and Brownsword Gerwiths analysis requires rejection of legal
positivism in favor of equation of laws with morally legitimate power.

II.
1.

LEGAL POSITIVISM
Coleman and Leiter

I.

Two central beliefs:


what counts as law is fundamentally a matter of social fact or convention (social
thesis)
there is no necessary connection between law and morality (separability thesis)

II.

Jurisprudence: method and subject-matter

A.

H.L.A. Hart

adopted its method of conceptual analysis: jurisprudence aims to give


analysis of the uses to which the concept of law is put in various social
practices
Two features of the concept:
(a)
Of all the various norms, only some subset are norms of law
(b)
Legal norms provide agents with special reasons for acting.
Reasons they would not have if the norm were not legal
Concept of law:

1.
Criteria of legality
2.
Normativity or authority of law
Uses descriptive sociology, that is an analytic classification of the uses to
which the concept is actually put in real social practices
Ronald Dworkin
Objections to positivism: moral principles can be legally binding in virtue of
the fact that they express an appropriate dimension of justice and fairness.
Distinctions:
(a)
Conditions of legality (or legal validity)
(b)
Meaning of a valid legal rule
He does not claim that the validity of legal principles depends on their
morality, but he believes that in interpreting the meaning of valid legal
rules it is often necessary to consult moral principles.
Does not claim that morality is a criterion of legality
Jurisprudence must provide a credible account of certain features he finds
in adjudication-ex. Judges disagree
Central figure: laws interpreter: the appellate judge
Raz
Sociological inquiry can be detached from the linguistic one. We do not
want to be slaves of words. Our aim is to understand society and its
institutions.
Legality and authority
Hart

Difference between the way law is and the way it ought to be

Criteria of legality
a. restrictive construal- (Raz) it can never be a criterion of legal
validity that a norm possess moral value, it must be some social
fact (ex. Source: legislature)
b. inclusive construal- incorporationism, positivism is committed
to 2 weaker claims:
i. not necessary that in all legal systems that for a norm to
be a legal norm, it must possess moral value
(Coleman:Negative Positivism)
ii. what norms count as legal norms is a matter of social
convention (can include convention/agreement among
relevant official to make the moral value of a norm a
condition of its legal validity

Note:
Even if there may be an overlap between morality and law, it does not violate the
separability thesis because thesis involves only a claim about the conditions of legal
validity.
2. A practical authority is a person or institution whose directives provide
individuals with a reason for acting. (in compliance thereof)

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*in order to be law, a norm must be required by morality. Morality has authority in
the sense that the fact that a norm is a requirement of morality gives agents a
reason to comply with it. If morality has authority, and legal norms are necessarily
moral, then the law has authority too. Norms are the compelling reasons why
agents follow the law, so if norms are required for the authority of morality, and
norms presupposes the authoirty of the law, then if morality has authority, so is
law..so its like the norms are the requirements for authority of law and morality.

- 11 1.
2.
3.

C.
D.

*For law to be authoritative, it must provide citizens with a reason for acting that
they would not otherwise have. If all legal requirements are moral requirements,
then the fact that a norm is a norm of law does not provide citizens with an
additional reason for acting. (its like not giving any reason at all because if laws and
morals are same, then what pushes one person to follow morality will be the same
reason he would use to follow law.) then it would fail to account for the authority of
law.

6.
1.
2.

IV. Positivism: Austin v. Hart

A.

John Austin
will or command theory of law.
Law is the order of a sovereign backed by a threat of sanction in the
event of non-compliance.
Norm is law only if it is given by the sovereign. Legality is determined by
its source; criteria of legality are matters of fact, not value
Its normative force is the threatened sanction. Without sanctions, it would
be just like requests. Sanction is the reason to act as desired by sovereign.

B.

HART vs. AUSTIN


Hart
Sovereign
sovereign is not a
person but office
Authority
Laws

Rule
of
recognition
Expands Liberty

Austin
Individual
who
has secured the
habit
of
obedience
Sanctions
Liberty limiting

A.

B.
C.
D.
E.

1.
2.

B.

5. Hart
law consists of rules of two distinct types:
primary rules-limit or expand liberty
secondary rules- about the primary rules
(a)
create a power to legislate
(b)
create a power to adjudicate
(c)
a rule of recognition-not a power-conferring rule. Sets our
conditions that must be satisfied in order for a norm to count as
part of the communitys law.
Three kinds of legal rules:

Difference between

What people do as a rule (The way law is)


What they do when they are following a rule- rule provides them with
a reason for doing what they do; Rules, when accepted from an
internal point of view provide reasons for acting apart from the mere
reasons of prudence that threats supply. (The way it ought to be)
Social rules, that is normative practices whose content and normative force
depend on actual behavior. Content of social rule is fixed by behavior, its
normativity depends on acceptance.
Critical Morality- need not describe or correspond to the prevailing practice,
it may be inconsistent with practice. Have normative force in such a way
that it does not depend on practices but their force is independent of social
practices.
Social rule-to fit Austins habits of obedience and critical morality.
7.

Note: How can law motivate compliance in the absence of sanctions.

A.

Those that obligate


Those that enable
Rule of recognition that sets out validity conditions.
Whenever there is law, there are primary rules that impose obligations and
rule of recognition so as to consider it as legal rule.
Law consists in rules, social rules. Social rules can be normative or
descriptive. Descriptions of what individuals are in the habit of doing
(descriptive). Reasons for doing what they do (normative).

The authority of law

Two distinct views about the role of social rule:


law is authoritative because it consists of social rules
laws validity does not depend on the existence of social practice.
(HART) law exists even without the existence of a social rule. Laws exists
to promote social practices.
Being a social rule is not a necessary condition of legal validity. If law is
authoritative, it cannot be because all laws are social rules.
He abandons the view that all laws consists of social rules.
The rule of recognition is a social rule whose authority being accepted from
the internal point of view. Laws derive their being valid under the rule of
recognition. Authority of rule of recognition (certain criteria as standards
for assessing validity) is transferred to the law whose legality depends on
the validity under the rules of recognition.
Two problems in legal authority:
(a)
even if we accept that the rule of recognition is authoritative being
a social rule, it does not follow that the rules valid under the rules
of recognition are authoritative.
(b)
authority of the rule of recognition does not derive from its being
a social rule or something that is accepted from an internal point
of view, if this is so, what makes a norm reason giving is the fact
that majority of individuals treat it as such.

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F.

- 12

Social rules have two components:


(a)
description of what individuals do as a rule
(b)
heir being accepted from an internal point of view
if not from an internal point of view, it can be of convergent behavior
convergent behavior provides an instrumental reason of morality for
treating the law as authoritative.
Example. One may not know what to do,so he does acts to
coordinate with what other people do. One person is motivated to
do the right thing but is uncertain of what morality requires of her,
if she believes that others are similarly motivated, then she has a
reason to do what they are doing, not to coordinate but assuming
that people do what morality requires, following their lead.
Norm cannot be a social rule unless there is an accepted from an internal
point of view. Such that it is a necessary condition of norms being a social
rule. But convergence is the normative.
8.

9.

Judicial Discretion

A.
1.
2.
3.
4.

B.
C.
1.
2.
3.
4.

A.
1.
2.

Dworkin describes Harts position in 4 tenets:


rule of recognition
model of rules, all legally binding norms are rules
separability thesis
judicial discretion-constrained authority of judges to appeal to
standards other than those prescribed.
Judges will appeal to moral principles which are binding legal standards,
because judges use them. They are part of the law because they express a
dimension of justice and fairness suitable to law.
DWorkin, contrary to Hart:
Law is not simply a matter of rules, includes moral principles
Moral principles are laws though not identified under rule of
recognition
Moral principles are law, fir they have dimensions of justice
Instead of discretion, judges appeal to binding legal standards that are
not rules,

A.
1.

Hart
why is judicial discretion unavoidable?
Rule of recognition- sets forth the conditions necessary for a norms
counting as part of a communitys law.
Open texture of language
NOTE: if no norm satisfies the rule of recognition. Judge has to go beyond
the non-legally binding standards. Even if there are binding legal norms,
discretion may still be required. Legal rules are expressed in general terms.
Judge must exercise discretion and in effect legislate meaning. They appeal
to moral principles and social policies.
There is distinction between easy and hard cases that parallels the
distinction between the core and penumbra of a concept.

Judges appeal to moral principles and social policies that are not
themselves binding legal standards.
As other positivists, allow moral principles to be legally binding standards
provided their being law depends on their satisfying a condition in the rule
of recognition.
It is not their morality that makes them law but the fact that they meet the
standards under rule of recognition, not their truth.
Law as a rule-governed (normative) practice, where rule-governed is
always intended to be broadly construed as to include customary practices
and other norms.
The legality of those norms be established by rule of recognition.

B.

Incorporationism
legality

and

the legality of moral norms is not a function of their morality, but their
validity under the rule of recognition
the rule of recognition asserts that certain norms are law provided they
meet the demands of justice.
Incorporationism depends on a rule of recognition incorporating morality
into law.
Dworkin
(a)
rule of recognition that incorporates morality into law cannot be a
social rule, which requires a pattern of convergent behavior.
(b)
denies that legal positivists can be incorporationists. Why?
(1)

A rule of recognition that includes reference to moral


principles will violate the separability thesis

(2)

Positivism is committed to the idea that what makes


something law depends on its history or the form and manner
of its enactment. Legality, for positivists, cannot depend on
the substantive value of a norm or the truth of a moral
principle

(3)

Positivism is committed to the rule of recognition serving an


epistemic function (by consulting it, individuals can determine
for themselves what the law is and what it requires of them)

(4)

Incorporationism allows morality into law in a way that makes


it impossible for the rule of recognition to serve its epistemic
function.

(5)

Positivism is committed to the rule of recognition being a


social rule. Incorporationism renders the rule of recognition
incapable of being a social rule.

Coleman

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- 13 -

negative positivism- no necessary connection between law and


morality. However, this does not prevent rule of recognition from
incorporating morality into law. It only prevents positivism from
claiming that law must necessarily incorporate morality into law.

Is positivism committed to pedigree, historical or non-contextual


criteria of legality?
Incorporationism does not entail the absence of a pedigree. Under
such rule of recognition, it is the fact that a moral principle is cited
that contributes to its legality, not the fact that the principle is
true or expresses a dimension of justice of the like.
Does incorporationism undermine positivisms commitment to the idea that
the rule of recognition serve an epistemic function?
(Hart) a rule of recognition should allow individuals to determine
which norms are binding law; the rule of recognition is, after all, a
rule of recognition. A rule that makes morality a criterion of
legality fails to reduce uncertainty.

2.

E.

F.

two different epistemic functions that rules of recognition might serve:


(a)
validation-- standard in virtue of which officials validate the
legality of norms
(b)
identification
10. Razs
theory
authority

A.

1.

of

Authority of rule of recognition

depends on the convergent behavior of relevant officials


nothing in this account is incompatible with incorporationists conception of
legality
B.
Authority of rules subordinate to it

ruled out Austins sanctions and Harts term of the internal point of view
C.
Joseph Raz

his authority is incompatible with incorporationism

account of authority presupposes the sources thesis that a norm is law


only if it has a social source
Can incorporationism be reconciled with the razian account of authority?

reason is the right reason that applies to us in settling the issue of what
we ought to do.

To say the law is a practical authority is to say that it provides for a


different reason for acting.

Austin- law provides for reasons: sanctions

Hart- sanctions do not adequately explain the claim that law makes to
being a practical authority, a claim whose truth or falsity would not hang on
whether particular legal directives were backed by threats.
D.
Relationship between the reasons law supplies and those that already
apply:

The reason law applies might be generally unrelated to the demands of


right reason (Hart and Austin)
They might conflict with the demands of right reason
if laws reason are in conflict, it would not be rational for individuals to act
on the basis of laws reason
They might generally coincide with those demands.
f merely affirms, it does not provide us with a reason for acting different
Normal justification thesis: in order for law to be a practical authority, it
must be the case that for each agent for whom law is an authority, that
agent would be more fully or satisfactorily comply with the demands of
right reason that apply to him by acting on the basis of the reasons law
supplies he would do otherwise.
Authority of law depends on its efficacy
How can one do better following the demands of right reason provided by
law instead of following his own right reason?
(a)
Coordination function

we are more likely to succeed of we follow legal directives that laws


provides than we would be by acting on the basis of the reasons we
have. Our individual efforts, even well motivated would be overcome
by problems that only legally created welfare state can overcome.
(b)
Special Epistemic role

we would probably be better if we follow the judgments of officials


because they know better having a position. Their legislative decisions
are reached after gathering information that we are not in a position to
secure.

NOTE: The claim to legal authority is based on the thought that the reasons law
provides replace the reasons that otherwise apply to us because acting on the
former will enable us more fully to comply with the demands of the latter than we
will by acting on the basis of them directly. However, there are areas in which we
have expertise, and law commits mistakes, laws authority therefore will be
incomplete at best.
11. Incorporationism
authority

and

Raz believes that account of authority presuppouses sources thesis, that


a norm is law only if it has a social source
Incorporationism allows that sometimes the legal validity of a norm could
depend on its moral truth rather than on its having a social source
Sources thesis incompatible with incorporationism
Dworkin and Raz (incorporationists) believe that legal positivism cannot
allow incorporationism.
Incorporationists and Dwrokin believe that modern legal democracies
incorporate moral principles into law without regard top their social source,
contrary to Raz.
Incorporationists claim that incorporationism is established through rule of
recognition, while Dworkin says it is through the practice of adjudication

/vvverga 102504

In determining whether a norm is a valid law, one would look into the
underlying justificatory reasons, then it would be incompatible with treating
the law as an authority, because to treat law as an authority, it so forego
assessing the justificatory reasons. Authority presupposes foregoing
precisely the sort of inquiry incorporationism appears to invite. But that
really does not provide us the reasons that justify the law.
Argument against incorporationism: of the law is to be an authority, the
rule of recognition must serve an identification and not merely a validation
function.
o
It must serve an identification function: Why? Law is an authority
only if individuals acting on the basis of it will do better than
following their own right reason. For individuals to act on the basis
of laws directives, they have to be aware of what the law is, and
what it requires of them. It must make the law accessible to
them. It must fulfill the epistemic function of identifying what the
law is. However, moral reasons on identifying the rule as law need
not coincide with its justification.
o
If moral principles are essential to the practice by which ordinary
citizens come to recognize which of the communitys norm count
as binding law, then the rule of recognition will not discharge its
epistemic function.
Hart- grants the centrality of the rule of recognitions epistemic function
and that incorporating morality into law makes it more uncertain. The
exclusion of certainty is not the goal for rules of recognition. There should
be a margin for uncertainty, so that an informed judicial decision can be
made, and so that its decision can be identified and rationally settled.
Positivists might argue that Raz is mistaken to think that authority of law
requires that there be no uncertainty in corporationism.
Other incorporationists questions whether incorporationism really renders
law uncertain. (coleman)
Argument for authority depends on citizens to identify and act upon the law
that applies to them.. this authority may or may not be the rule of
recognition. If citizens do not use the rule of recognition, it must be the
rule of identification, what is required of it is that it be a reliable indicator
of what turns out to be a valid law. It also might be that they turn to laws
only if it satisfies the sources thesis. In that case, the sources thesis
would only be a constraint on the authority of the law and not on its
validity. Incorporationism then would be compatible with validity. The
sources of thesis would be a condition of legitimate authority and not a
constraint on the standards of legal validity.
All positivists really require is that there exist some practice that enables
ordinary citizens reliably to determine the law, no necessarily the rule of
recognition.
Sources thesis then would impose a constraint on the rule of identification
and not the rule of validation. For there to be a law, there must be a
validation rule- one that is broad that incorporationism allows.
For law to be authoritative, there must be an identification rule-one that
may not be so broad.

- 14

The authority of rule recognition depends ultimately on considerations of


co-ordination and knowledge. (link between individual actions and
convergent behavior).
As regards authority of rules subordinate to the rule of recognition, the link
is between the reasons that already apply to agents and the agents
grounds for believing that the laws reasons provide a better avenue for
complying with them.
Central to positivisms analysis of legality is the institutional nature of law;
central to its analysis of authority is the idea of efficacy.

JUSTICE AND FAIRNESS


JOHN RAWLS

A.

The Role of Justice

A theory however elegant and economical must be rejected or revised if


untrue

Laws and institutions no matter how efficient and well-arranged must be


reformed or abolished of they are unjust

Each person possess an inviolability founded on justice that even the


welfare of society as a whole cannot override.

The concept of justice must not be based on the utilitarian ideal: greater
good for the greater number
(a) the loss of freedom of some is cannot be made right by a greater
good shared by others
(b) sacrifices of the few are not outweighed by the larger sum of
advantages enjoyed by many

Rights secured by justice are not subject to political bargaining. Truth and
justice (first virtues of human activities) are uncompromising.

Is injustice tolerable? Yes only when it is necessary to avoid greater


injustice.

B.
C.

The main Idea of the Theory of Justice


Principles of justice for the basic structure of the society are the object of the
original agreement.

D.

Principles of justice: principles that free and rational persons concerned


to further their own interests would accept in an initial position of equality
as defining the fundamental terms of their associations.
These principles regulate all further agreements

Justice as fairness: a way of regarding the principles of justice; conveys the


idea that principles of justice are agreed to in an initial situation that is fair.
(a) In Justice as fairness, the original position of equality corresponds
to the state of nature in the traditional theory of the social
contract
(b) Essential features of the state of nature:

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no one knows his place in the society, his class position or
social status
no ones his fortune in the distribution of natural assets and
abilities, his intelligence and strength.
Parties do not know their conceptions of the good

Veil of ignorance: ensures that no one is advantaged, or disadvantaged in the


choice of principles by the outcome of natural chances or the contingency of
social circumstances.

(1)
(2)
(3)

E.

F.

G.

H.

I.

- 15 -

Principles of justice are chosen behind said veil of ignorance, thus, such
principles are the result of fair agreement or bargain.
The original position is the appropriate status quo thus the fundamental
agreements reached in it are fair.
Steps in formation of justice as fairness:
(a) It begins with the choice of the first principles of conception of
justice.
(b) Choosing a constitution and legislature to enact the laws
It is presumed that these steps are in accordance with the original
agreements initially agreed upon.
The general recognition of the fact that everyone views their arrangements
as meeting the stipulations and their choice of principles would provide the
basis of public acceptance of the corresponding principles of justice.
In this sense, the members of the society are autonomous and the
obligations they recognize are self imposed.

II.

Features of Justice as Fairness

Parties in the initial situation are rational and mutually disinterested.

Concept of rationality must be interpreted as taking the most effective


means to given ends (standard of economic theory)

Principle of utility is incompatible with the conception of social cooperation


among equals for mutual advantage.

Principle of utility requires lesser life prospects for some simply for the sake
of a greater good enjoyed by other

Each desires to protect his own interest, no one will agree to an enduring
loss for himself in order to bring about a greater net balance of
satisfaction.

III.
A.

Two principles persons may choose in the initial situation:


(a) Equality in the assignment of basic rights and duties
(b) Social and Economic inequalities, are just only if they result in
compensating the benefits for everyone, especially for the least
advantaged members of the society

There is no injustice in the greater benefits earned by a few provided that


the situation of persons not so fortunate is thereby improved.

I.
II.

Justice as fairness is an example of a contract theory

B.

Like all other contracts, it consists of two parts:


(a) an interpretation of the initial situation and of the problem of
choice posed
(b) a set of principles which would be agreed to.
As a contract the principles of justice may be conceived as principles that
would be chosen by rational person
In this way, conceptions of justice may be explained and justified.
As a contract, the division of advantages must be in accordance with
principles acceptable to all parties.
As a contract, parties have knowledge of the principles that they follow
(public nature)
It must be noted however that justice as fairness is not a complete
contract theory for the contractarian idea can be extended to the choice of
an entire ethical system including all the virtues. Justice as fairness only
considers principles of justice and others closely related to it.
The original position and justification
The original position is the appropriate initial status quo, which ensures
that the fundamental agreements reached in it are fair.
How to arrive at the veil of ignorance: one excludes the knowledge and
contingencies, which sets men at odds and allowed them too be guided by
their prejudices.
Parties in the original position are equal: all have the same rights in the
procedure for choosing principles
Equality between human beings as moral persons as creatures having a
conception of their good and capable of a sense of justice.
Reflective equilibrium:
an equilibrium wherein our principles of
judgments and the premises of their derivation (conditions) coincide.
The original position represents the attempt to accommodate within one
scheme both reasonable philosophical conditions on principles as well as
our considered judgments of justice.
Conditions embodied in the original positions are ones that we accept.

Two principles of justice


Each person is to have an equal rights the most extensive basic liberty
compatible with a similar liberty for others.
Social and economic inequalities are to be arranged so that they are both
(a) reasonable expected to be to everyones advantage
(b) attached to positions and office open to all.

These principles pre-suppose that the social structure can be divided into
two or more or less distinct parts.
basic liberties that are required to be equal
those that specify and establish social and economic inequalities applies
to the distribution of income and wealth and to the design of organizations
that use different kinds of authorities or chains of command.

While distribution need not be equal, it must be accessible to all and must
be to everyones advantage.

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These principles are to be arranged in a serial order with the first principle
prior to the second. This ordering means that a departure in the liberties
required by the first principle cannot be justified by greater social and
economic advantages.
Distribution of wealth and income, and the hierarchies of authority must be
consistent with both the liberties of equal citizenship and equality of
opportunity.
Conception of Justice based on the two principles:

All social values liberty and opportunity, income and wealth, and the bases of
self-respect are to be distributed equally unless an unequal distribution of any,
or all of these values is to everyones advantage.

What is injustice? Injustice is inequality that are not to the benefit of all.

IV.
A.

B.

- 16 Final Notes:
In justice and fairness, men agree to share one anothers fate
Institutions which satisfy these two principles (which is a fair way of meeting the
arbitrariness of fortune) are just.

QUESTIONS OF MANS FREEDOM


Fr. Jose A. Cruz

Primary goods: things that a rational man is presumed to want (rights


and liberties)
Social primary Goods: other primary goods such as health and vigor,
intelligence etc.
The principle of justice as fairness is not just another principle of utility:
Principles of utility would have us maximize the sum of expectations of
representative men (weighed by the number of persons they represent);
and this would permit for the losses of some by the gains of others. The
principles of justice require that everyone benefit from economic and social
inequalities.

The tendency of equality

The principles of justice express an egalitarian conception of justice

Difference Principle and the Principle of Redress


Principle of redress

Undeserved inequalities call for redress (inequalities of birth and natural


endowment)

In order to treat all persons equally, to provide genuine equality of


opportunity, society must give more attention to those with fewer native
assets and to those born into less favorable social positions.

The idea is to redress the bias of contingencies in the direction of equality.


The Difference Principle

Not the principle of redress

It does not require the society to try to even our handicaps as if all were
expected to compete on a fair basis in the same race.

But this principle would allocate resources in education in order to improve


the long-term expectation of the least favored.

Thus, although it is not the same as the principle of redress, it does


achieve some of the intent of the latter principle.

We are led to this principle of we wish to set up the social system so that
no one gains or loses from his arbitrary place in the distribution of natural
asses or his initial position in the society without giving or receiving
compensating advantages in return.

Freedom: cannot be explained or defined on the level of everyday ordinary


experience. But freedom involves a whole process leading towards a
decision called choice
Two aspects of Free Choice
(a) Every choice is based on a value, a perfection for the self to be
attained or exercise
(b) Value is never to be taken in isolation. T must integrate within an
IDEAL (can be self-image) towards which the total self aspires to
become.
Two-fold level of free choice
(1) horizon of choices or possible choices (horizontal freedom)
dependent on previous or antecedent choice on the vertical level
(2) dimension or vertical choices (vertical freedom) centered as a
style of life previously chosen; initial decision; ideal of self one
wants to be.

THE WAY TO FREEDOM


Robert Johann

A.

B.

Freedom
(a) Too often, it is an absence of external restrictions on my native capacity for
self-determination
(b) Too seldom, it is recognized that the greatest obstacle to freedom is within
me, that, quite apart from what other do, I need more than free will to be
free.

Free act is one for which I am responsible (it is an act which I am the
source, ergo, freedom is identical with my selfhood; with my capacity to
act on my own.

Bu the fact that I am responsible for what I do does not mean that my
actions are responsible actions
Ambiguity in the Notion of responsibility

Being a person makes me responsible for my actions: being responsible for


my action however, does not make me a responsible person.

Responsibility is not mere accountability; it is the ability to give an account.


It includes responsiveness

A responsible person is one whose actions are shaped in response to


objective requirements and not simply by his own whims.

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The ability to act rationally thus presupposed and arduous shifting of lifes
focus. It means putting the Other in the forefront in place of misled and
learning to respond to the requirements instead of yielding to caprice.
Apart from it, there is no freedom at all worth the name, for it is that
dying to self is the only portal to life and to the freedom of children of
God.

- 17 -

A.

MANS QUEST FOR FREEDOM


Rainier Ibana
Thesis of the essay: freedom is important and for its sake, whole nations are
conquered.

I.

B.

What is freedom?
Determinist
1.

Hard determinist: contends that there is no freedom. Man is a mere


object of his environment, thus, because of the limitations to the body,
he can never be free. There is no such thing as Freedom.
(a)

2.

Anaxagoras would have interpreted Socrates choice to accept


death penalty as determined by the finitude of Socrates skin,
flesh and bones rather than a choice to do what is right and
honorable.

(b)

Platonic Refutation of determinism: man is not determined y


the physical world.
He can control his bodily movements.
Through his body, man controls the physical world; he is then free
from the physical world itself.

(c)

Appeal to physiological factors to refute the existence of freedom

Soft determinism: Even if man is free to choose, he is not free to


choose what he wants to choose.
(a)
Appeal to psychological and sociological theories to delimit the
scope of freedom.
(b)
Representatives:
BF Skinner

Human freedom is irrelevant to the development of the


human person because human behavior can ultimately be
conditioned by means of rewards and punishments.

These rewards and punishments are mere reinforcements,


which trains behaviors.

By controlling the reinforcement in a culturally engineered


environment, Skinner claims that they can produce saints,
wise men, heroes, tyrants and fools.

Skinner sees man as an animal, trainable through


reinforcements.

Whatever society Skinner will produce will merely be a


totalitarian community with pre-determined rules.
Philosophical refutation of soft-determinism
Kantian distinction between determination by natural necessity and the
freedom attributed to man.

Animal conditioning cannot be applied to human

As a human being, man can always refuse to follow the stimulus response
mechanism.

Such refusal can only be understood under the postulate of the existence
of freedom.
Libertarians (C.A Campbell and C.D. Broad)

Using the Kantian distinction, they supposed that in order to account for
any kind of responsible human behavior, freedom must be a necessary
presupposition.
(a)
even the choosing of rewards and punishment in Skinnerian
community will have to be chosen by an engineer.
(b)
Degree of rewards and punishments will have to correspond to the
degree of responsibility. (ex. A judge in adjudicating a case
determines the degree of responsibility contributed by the criminal
to the accomplishment of the crime.)
(c)
This act of choosing presupposes freedom on the part of the
agent.
Determinist must presuppose freedom.
Determinism presupposes that the determinist is free to argue for determinism.
Otherwise, it would be more absurd to argue that man is already determined to
be determined.
Freedom then is the cause, which determines human behavior.

C.

II.

Why is freedom important


Without an actual choice, freedom will only remain as a potential power.
Freedom cannot be separated from the nature of man because freedom must
be directed to conform with the said nature.
(a)
The best choice for a man is the choice that promotes his essence.
(b)
Worst choice is that choice which contradict the pre-conceived
essence.

According to natural law: of the choice is made in contradiction with the


natural essence of man, then this choice is not a free choice at all.

The problem: RELATIVISM: there are many ways of conceiving man which
leads to different norms that determine mans choices.

In order to resolve this conflict, the modern philosophers attempted to


start all over again and postponed their pre-judgment on the essence of
man.
(a)
Husserl practitioners of humanistic science have completely
neglected even to pose the problem of a universal and pure
science of the spirit and to seek a theory of the essence of the
spirit as spirit.

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- 18 -

Dewey the fundamental postulate of the discussion of freedom


is that isolation of any one factor, no matter how strong its
working at a given time, is fatal to understanding and to
intelligent action.
(c)
Existentialist freedom, refers to the condition of human
existence, rather than to characteristic of human nature.
(d)
Enlightenmentcry for absolute freedom. Man should be free
from nature, fellowman, society and God.
Note: The Demands of Enlightenment can be divided into two Absolute Freedom
the terror. This division emphasizes the negative effects of the Enlightenment.
The enlightened demands for freedom eventually degenerated into an anarchy. Ex.
French revolutions attempt to rationalize even religious acts which resulted to
empty formalization of knowledge, without contents.
(e)
Karl Marx -- human liberation could not be expected to merely
descend from the sky, but must be achieved by transforming the
alienating conditions of human life by means of human labor.
Attainment of freedom can be fulfilled by means of PRAXIS or
revolution.
Note: Even Marx fell into the trap of essentialist thinking when he reduced
his idea of man to the essence of HOMO-FABER (species-being; adopted by
Erick Fromm from Feurbacks notion of the distinction between
consciousness of a man of an animal. Man is conscious not only of himself
as an individual, but of the human species or human essence.

Marx tried to make distinctions between the different levels of alienation


but there still existed a problem.
Because of the essentialist
preconception, the determinant of Marxist kind of social transformation
could only be the laboring class. Anyone not part of the laboring class
must be swept away.

(b)

III.

Karol Wojtyla
Instead of analyzing human being by means of class conflict, Wojtylas mind
attempted to solidify the inherent CLOSENESS between human beings.
Class struggle is not the vehicle for social transformation but SOLIDARITY
MOVEMENTS and PARTICIPATORY DEMOCRACIES.
Aim of Wojtylan political program is to simultaneously transform the individual
members and social structures from objective totalisms toward participatory
and communal membership.
In Wojtylas perspective: ALIENATION (like that of Marx) is the starting point in
understanding freedom. But Marxs second premise that: the only way to
attain liberation is through revolutionary overthrow of those who of not share in
the essence of man as homo-faber, shall be done away with
Man should now be treated in a more synoptic vision of his being as BEING.
(Being qua Being)
Liberation will bring about emancipating conditions of those who belong in one
particular class but to the whole community.
Instead of revolution as a means of negating alienation, the Wojtylan political
methodology would propose the POSITIVE AFFIRMATION of the human being
qua Being in terms of solidarity and participation.

IV.

In this set-up, opposition is still present because it is an authentic form of


participation.
In this set-up, no particular class will dominate, thus every human being is
called upon to participate in the process of liberation, each person has a unique
contribution to the common good of man, whole not necessarily being
individualistic.
Dignity of the human person is then protected since such dignity could be
located from the individuals participation with the common good.
Freedom is connected with mans being (The source of freedom is the being of
the human)
In treating man as a human being, his freedom is preserved because he is
allowed to exist, as he is not predetermined by essentialist doctrine.
How is freedom possible
How to find for freedom --- by participating in ones being: to be and to know
oneself.
Man chooses his values (example: a holy man tends to choose values of
holiness, wise men intends the values of rightness or wrongness). But in
choosing these values, there are objective standards: depth, endurance,
divisibility and extension (Max Scheler)
Thus, a well-integrated human being prefers the value, which could lead to
deeper fulfillment, longer endurance, extensive scope, more divisibility and
broader extension.
To violate this objective would pervert the human being. He is then susceptible
to mislabeling values (ex. Labels holiness as unholy) and thus commits injustice
to himself and others.
Human being who conform to the objectivity of these values benefits from the
liberation by being able to attain higher and higher levels of actualization.

Radical will of the good the bridge that connects the objective order of values
and the matrix of personality structure of human being. Human freedom is oriented
precisely by this will for the good.
Thus: Freedom is always intentional because it is always intending, reaching out
striving for the good.

But by manipulating mans sense faculties, these goods (pedestrian goods


advertised in billboards, and walls) lure human freedom to create these goods
within his personality structure
Power of freedom can be demonstrated by showing its effect on human
behaviors.
Once man become conscious of the objective goods desired by his will, he is
driven to realize the freedom to will the good in his concrete acts of choosing.
Except to the One true God, all other forms of exercising the act of choice are
all directed to finite goods which leads to CORRUPTION (absolute love for finite
goods). Ex. Love for power makes a tyrant murder for power.
For a man to keep his freedom, he must have an objective sense of justice.

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Libraa balancing stem held by the must of justice, the root of the words
deliberate and equilibrate

V.

The order of values


Derived from Platos notion of justice as the proper order in the cosmos: in
accordance with the principles of goodness and beauty. This would help us
consider the complex demands of freedom.
St. Agustine these goodness and beauty predicates of Gods ultimate Being
In the society, this would mean that higher values must be the norm of human
decisions while lower values must be used only in so far as it can serve the
higher values. Higher values will never be subordinate to lower ones.
In the classic order of values, freedom need not be in contradiction with justice.
Freedom conditions justice (because in the promotion of freedom, everyone is
allowed to use their talents in their quest for conditions that would fulfill their
vocations as human beings) and justice is a condition for freedom.
Freedom is a form of justice -- to violate freedom is to deny justice due to
human being.
Justice is best served if freedom is enhanced.

- 19 Through the Wojtylan exercise of participation/deliberation, human freedom can be


positively affirmed coupled with the fact of being conditioned by the sense of
justice.
RIGHTS
D. Knowles

A.

Rhetoric of human rights is universal. A lot calls for the observance of human
rights, but in practice, the state continues refuse to giving such rights to its
citizens, of course except when applying for aid from the UN. But as soon as
the crisis is alleviated, the state return to its usual habits of violating human
rights.

B.

Analysis and definition


The Rights of Man universal rights; also called as natural rights by Hegel;
abstract rights (abstract rights because all that person have to say for
themselves qua other person is that they are essentially different from each
other there are no ends or goods distinctive of the sense each has of himself
as a person).
Why term human rights is best:
(a)
it connects with the language of the charters, declarations and
conventions which inscribe rights as a principle of international
law. These rights referred to by these charters are Rights of the
citizens claim against their governments.
(b)
The term natural rights carry with it a distinct provenance
(transcendental, non-naturalistc, imprint of talk of natural law,
thus may be unattractive to some. Natural rights were deemed
natural because they were product of natural law.
Natural rights are sanctioned by natural law (Locke)

Logic:

Destructive dilemma between freedom and justice: can only happen if justice
is state in crude populist terms (human beings can be uniformed in one
essence; supposes that everyone is equal. But this is problematic equality
can become an ideal goal but never the starting point of social change) and
freedom is sated in rugged individualistic assertions (does not consider
Rawls natural and social lotteries or inequalities during birth which could hinder
an individual in participating for the common good.

Constructive dilemma between justice and freedom is made when freedom is


conceived as a condition of justice and justice is made a condition of freedom.
One could affirm the importance of he other thus, both entail each other.
Note: We cant insist that freedom and justice can only be conceived in the form of
destructive dilemma because to say that it is such is to say that they are exclusive
of each other; any discussion between the two would be a waste of time. The
difference between a populist egalitarian and individualistic libertarian can only be
resolved by a mob rule.
Constructive dilemma could accommodate the positive elements from the parties of
the deliberation (an important condition for the possibility of convergence; a
complex social dimension) and can even converge on the same ideals of freedom
and justice.
ERGO: It is with the interplay between social structure and order of goods
could authentic freedom become possible
Conclusion: Freedom is important because it is the source, which makes human
behavior possible; it is the dynamic drive, which propels human being towards the
liberation of his total being from any form of alienation.

Introduction

Human rights vs. legal rights


(c)
Human rights species of moral rights; generally register moral
claims and are to be vindicated by moral argument.
(d)
Legal rights product of some specific legal system
Note: the law may recognize moral rights, embodying in statutes standard liberal
rights. How is this done: through INCORPORATION of international charter to
municipal law of the land.

Positive rights vs. Critical rights (echoing H.L.A Hartss distinction between
positive and critical morality)
(a)
positive rights rights recognized within some appropriate system
of actual, operative rules; LEGAL RIGHTS are POSITIVE RIGHTS.
Other examples: religious rights
Note: MORAL RIGHTS may also be positive rights in circumstance when a
recognized system of moral rules entitles one to make a legitimate claim. (ex.

/vvverga 102504
Parents claim a positive moral right of obedience from children, children claim a
positive moral right of independence from parents).
When a system of domestic regulation binds persons, this is how moral rights work

C.

- 20

Critical rights rights that ought to be recognized, whether, as a matter of


fact, they are recognized or not. It would be odd to claim a critical legal
right.
Criticism to critical rights:
(a)
Rights which can find no critical endorsement (rights then become
relative)
(b)
Critical reflection may support the case of rights which positive
morality does not recognize.
Hohfelds classification

Notion of legal right is ambiguous, having four distinct senses


(a)
Privilege right (liberty rights to others) these rights are
compatible with others acting in ways that prevent the bearer of
rights from acting. (ex. Liberty of man to preserve his own
nature, thus, if ones life is at stake, everything is permitted);
ALSO KNOWN AS A RIGHT OF NON-INTERFERENCE
(everyone has the correlative duty not to interfere) and
RIGHTS IN REM
(b)
Claim rights those who claims rights also have the stature of
holders of responsibilities; these rights are correlative to duties;
ALSO KNOWN AS NEGATIVE RIGHTS AND RIGHTS OF
ACTIONS. By claiming this right, I recognize the right of others
against me.
(c)
Rights in Personam entail correlative duties on the part of the
assigned individuals (ex. Rights of children to claim care from
their parents)
(d)
Rights in REM rights claimable against anyone or any institution

** Jeremy Waldons classification


(a)
Special rights (conditional rights) arise out of some contingent
deed or transaction/promise or contract
(b)
General rights (unconditional rights) not products of
contingencies (ex. Rts. to life); rights in REM
Note:
Characteristically, rights of non-interference are claimable both in rem
(against all and those who would agree against the individual) and in personam
(where specific individuals or agencies have duties of protection, prevention or care)

Individual and Group rights


(a)
Individual rights held by individuals against supra-individuals,
against each other and the state

Has its origin in the middle ages

Notion of equal, universal rights was a Product of individualism


explicit in Protestant theology (each person having his own access
to God)

Central to these account is the idea of the person as the subject of


rights; a human being as the maker of moral claims.

To see oneself as a person is to make claims of right and to


recognize the claims of others.

Hegel: Be a person and respect others as person

What is the default position? When man asked who am I? :


claims of personality is historically emergent, it depended on
TIME.
(b)
Group rights attests to the existence of a group as a unit of
moral agency, having something of the boundedness and
singularity claimed for individual persons.

Robert Zonick talks of Hyper Planes in moral space partitioning the


moral universe into collection of individual bearers

Commutarianism individuals must first cite their association with other


before demanding for rights. (ex. I can only claim political rights if I am a
citizen)

Speciesism happens when the interest of the species as a group need to


be asserted against outsiders; presupposes that the human species is a
distinct grouping with proper interest to defend and promote against the
completing claims of other groups.

Question: Whether individual rights should be assigned priority over group


rights. Cant be answered, depends on case to case basis (ex. issue of
Amish community and their tradition and the rights of the children to go to
school.) This can be resolved through JUSTIFICATION OF RIGHTS CLAIM
(how are rights justified

D.

Power third element in Hohfelds analysis of legal rights; concerns power to


alter rights and duties (ex. Right to private property, Democratic Right of
political participation.

Immunities obverse of power; protections against arbitrariness or excess in


the use of powers

Justification of Rights
1.
Lockean Themes: Mode of Ownership
Locke offered the most straightforward argument for natural rights.
Mankind is Gods creation. We cannot act as his trustees unless our lives,
health, liberty and possessions are respected. We have a natural right to
these goods, subject to our respecting equivalent claims of others.
Natural right is a right asserted in accordance with natural law (Gods law).
Thus, we can claim against others that (negatively) they do not interfere
with our life in Gods service) and (positively) as parents, that they provide
us with the means of properly human life).
Natural law and natural rights are discernable by reason.

/vvverga 102504

Locke tackles the hard problem of the right to private property through his
doctrine: THESIS OF SELF-OWNERSHIP, which provides that every man
has a property in his own Person, nobody has a right to but himself.
This thesis that we naturally own ourselves is often used to legitimatize
slavery.
However, some would say that this right is inalienable, thus
slavery is unjustifiable.
It may be justified that the rights of persons can be derived from the fact
that he is the owner of himself.

2.
Autonomy
H.L. Hart argued that that, if there are any moral rights at all, it follows that
there is at least one natural right, the equal right of all men to be free.

Freedom is violated when agents transgress the duties required of them in


virtue of the legitimate rights of autonomous agents.

Autonomy is described by Dagger as the capacity to lead a self governed life.


Every other right derived from it or is in some sense a manifestation of our
human right to autonomy.

Autonomous life, is life. No autonomy, no life.

However, there are violations of rights which may not be a violation of


autonomy.

Rights inflation: (described by L.W. Summers) phenomenon where in a


variety of interests are attested by individuals as grounds for the claims they
make on other.

Claims of right are not self-validating- rights claims are expression of


interests. Thus, in case of disputes, examine the interest which ground claims.

Interest
(a)
natural groups are those groups of which agents find themselves
to be members. (ex. family, state)
(b)
artificial groups enlist members on the basis of declared
prospectus; may be identified in terms of antecedent interest
which the members promote.
Note: Group membership forms as well as serves individual interests, even in the
case of those original interest is self-interest -- this is termed as Mediation of the
Particular through the Universal (Hegel).

E.

F.

Rights and utility.


How can utility as object of rights work to justify institutional provision? To
register the interests which rights service in a utilitarian calculation.
This calculation requires that everyones interest be taken into account.
Utility may provide ground for the justification of rights
The no theory-theory
Rights are generally asserted claims against others. If other acknowledges
them as a right, then it is established. All practice involved in a practice of
making right claims.
If rights are claimed, acknowledged and respected amongst the community, no
further argument is needed to establish their provenance.
What if it is denied all the time? Use history and sociology.

- 21 -

THE RULE OF LAW VERSUS THE ORDER OF CUSTOM


Stanley Diamond (Marxist)
Thesis: Relation between custom and law is one of contradiction, not continuity
I.

Law versus Custom


Law has cannibalized institutions because we are encouraged to assume that
legal behavior is the measure of moral behavior
Law (an effort to legislate conscience by an external political power) is the
antithesis of custom.
Customary behavior (Social Morality): aspects of social behavior which are
traditional, moral, and religious (non legal)
William Seagle custom is spontaneous and automatic; law is a product of
organized force

A.

Difference between law and custom


Law
Custom
Symptomatic
of
the Spontaneous,
tradition,
emergence of the state
personal,
commonly
known,
corporate,
relatively unchanging
Instrument of civilization, A. modality of primitive
sanctioned by organized society
force
B.
Similarities: Law and Custom both involve the regulation of behavior.
II.

A.

B.

C.

Archaic Law and Local Custom


Proto-states early phases of archaic societies; represents a transition from
the primitive kinship based communities to the class cultured polity.
In proto-states, law and customs exists side by side.
Customary behavior maintains most of its force
These archaic states are transitional: in their early phase, they are the
agencies that transmute customary forms of order into legal sanctions
Examples:
Proto-state of Dahomey
Best friend system each person have three best friends in descending order
of intimacy and importance.
This transitional institution extended the family structure
In this system, the best friend, is expected to turn himself in rather than
implicate his friend in his punishment.
The custom of friendship was given a legal edge and converted by the evil
power into means of forcing its will.
Russia
System of revenge: If a man kills another man, the brother will avenge his
brother, son, his father (vice versa), if no avenger, the murderer pays.
Visgoths

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A person who kills another is expected to be handed over into the parents or
next of kin of the deceased

** in these instances, custom has been codified by an external agency, assuming


legal force; reinforcement of custom by the civil power.
III.
Formation of the Family and State

According to Maine: As the state develops, the individual is substituted for the
family as the unit of which civil laws take account.

According to Jhering: The progress of law consists in the destruction of every


natural tie, in a continued processes of separation and isolation.

Totalization state process wherein an individuals bearing become collective.

Etatist tendency can be observed in sub Saharan proto-states (existence of


militaristic clan).

In these small states, organizations such as militaristic clans exist undermining


the authority of the state and placing certain persons outside its jurisdiction
(interstate warfare).

The contradictory transition from customs to specified laws is by no means the


major source of law.
IV.
The Census-Conscription-Tax System

The laws typical of intermediate societies are unprecedented.

They arise in opposition to the customary order and represent a new set of
social goals pursued by a new and unanticipated power in society which can be
reduced to a single imperative: census-tax-conscription system (conscription of
labor, levying of taxes and tribute and assessment of the location and numbers
of the population being subjected)

Major Direct and Indirect Occasions for the development of Civil Law: Census
-- represents the potential power of the state; carefully guarded; essential for
conscripting men and provides the basis for taxes.

Double meanings of certain terms in English which reveals the conflict between
local usage and the census-tax-conscription system of early state:
a) duty means moral obligation and tax
b) court residence or entourage of sovereign; a place where civil justice is
dispensed

In primitive societies, there is a built in mechanism for resolution of conflict


(through courts) and conflicts generated by the ordinary functioning of social
institutions were resolved as part of the customary ritual cycle integral to the
institutions themselves.

Customary law solves almost anything. From inheritance to ownership to rules


of behavior and morality.
V.

The problem with the new system


In Census-tax conscription system unlike in customary law, every conceivable
occasion was utilized for the creation of law in support of bureaucracy and
sovereign.
William Stubs said that it was only for the sake of profits that early justice was
administered at all.

- 22

Example: Laws governing Tolls (tolls are important source of revenue),


punishment for theft of property.
Burton said that in the event that there us a financial dispute, the bureaucrat
would sit in judgment.
The author is in contention that the abundance of laws actually provoked
breaches. Example: rape was an invented crime (if it occurred in a traditional
joint-family, the wrong would have been dealt with by COMPOSITION -- a ritual
of giving goods to the injured party or through ritual purification or banishment.
In the early state, crimes have been invented in order to suit the laws
Latent purpose of law: punishment in the service and profit of the state, not
prevention or protection of persons, nit the healing of breach.
There were lots of laws made that were not necessary (ex. civil protection of
market place and highways). In joint family, clan or village, this would have
easily dealt with. With an evolving state, the presence of the kings men
(usually referred to as bandits and predators who victimized many people)
would itself be a primary cause of disruption.
Laws became self-fulfilling prophesies because the laws and crimes which it
served were actually covariant of the evolving state.
The intention of the civil power (first civil laws) is epitomized in the sanctions
against homicide and suicide.
Persons were property of the monarch (thats why suicide and homicide are
offenses against the state).
By undermining the kinship bond, they made it easier to deal with individuals,
and the isolation of the individual if a basic precondition for the growth of law
(Maine).

VI.
Difference with Joint Family systems

In joint families, murder in a joint family village was a tort a private


remediable wrong which could stimulate a blood feud, not to be confused with
Lex Talionis (law of revenge)

The theory of eye for an eye never really held for primitive people.
Replacement for loss with damages and not through retribution.

Acts of violence must be distinguished from Crimes of violence.

Homicide is an offense against Ala the earth deity. Thus, if a villager is


involved, the murderer is expected to hang himself.

The life of individual id highly respected; it is protected by earth goddess.

In the proto-state, the struggle was over the lives and labor of the people.
VII.
Law and Disorder

If revolutions are the acute, episodic signs of civilizational discontent, the rule
of law has been the chronic symptom of the disorder of institutions.

A constitutional government, whether called republic or kingdom, is an


arrangement by which the nation governs itself by means of the machinery of a
military despotism (Taylor)

Among lessons to be learnt from the life of rude tribes is how society can go
without the policeman to keep order (Taylor).

All political society is based on repressive, organized force, only a Plato or


Machiavelli or a Marx was able to penetrate the myth between the ruler and the
ruled, or equality under the law.

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The tradition of Plato and Machiavelli comments the use of the royal or noble
lie while Marx exposes and rejects power structure that propagates false
political consciousness.
The state, has assumed monopoly of political co-ordination (Vinogradoff). It is
the state which makes laws and eventually forces them, by coercion (did not
exist in ancient times)
State created a public power of coercion that did no longer coincide with the old
self-organize and armed population.
Engles writes that the state is the alienated form of society. Why? Because the
state is a power forced on society at a certain stage of evolution. State is
necessary in order for the classes with conflicting economic interest may not
annihilate themselves in a useless struggle. But as time passes, the supremacy
of state becomes more and more pronounced and later on becoming more
divorced from the state.

VIII.
The response to civil law

The struggle for civil rights, then, is a response to the imposition of civil law.

Law has its origin in the pathology of social relations and functions only when
there are frequent disturbances of social equilibrium.

Law arises in the breach of a primary customary order increases in force with
conflicts that divide political societies internally and among themselves.

Law and order is the historical illusion: law versus order is the historical reality.

- 23 (b)

II.

Treating power conferring rules as mere fragments of rules


imposing duties or treating rules as directed only to officials
distort the ways in which these are spoken of and actually used in
social life.
The failure is due to elements out of which the theory is constructed (ideas of
orders, obedience, habits, etc).
Types of rules
Primary Rules
human
beings
are
required to do or abstain
from
certain
actions,
whether they wish or not
impose duties
concerns
actions
involving
physical
movement or changes
the basic goods: the
absolute fundamental of
natural law

LAW AS THE UNION OF PRIMARY AND SECONDARY RULES


H.L.A. Hart
II.

A fresh start
The simple model of law as the sovereigns coercive orders failed to reproduce
some of the salient feature of the legal system. Why?
1.
In all varieties of law, a criminal statue forbidding or enjoining actions
under penalty most resembles orders backed by threats (for one, there
is not continuing belief in the consequence of disobedience; order
backed by threats are only addressed to a particular person)
2.
There are other varieties of laws conferring legal powers to adjudicate
or legislate or create /vary legal relations which cannot be construed
as orders backed by threats
3.
There are legal rules which differ from orders in their mode of origin
because they are brought into being by anything analogous to explicit
prescription.
4.
The notion of law in terms of sovereign habitually obeyed failed to
account for the continuity of legislative authority characteristic of a
modern legal system.
Ancillary devices used in criticizing the conception of law as the sovereigns
coercive orders.
(a)
Notion of tacit orders have no application to the complex
actualities of a modern legal system. Only applies to simpler
situations.

Secondary Rules
type of rule which is in a
sense
parasitic/dependent upon
the first
confer powers, public or
private
provide for operations
which lead not merely to
physical movement or
change,
but
to
the
crayon or variation of
duties or obligations.
Have
to
do
with
operatives
To enforce the basic
goods

In the combination of these two rules, there lies the law (key to science of
jurisprudence).

III.
The Idea of Obligation

Where there is law, there is human conduct which is made in some sense nonoptional or obligatory (after all, law is obligatory).

Notions of Obligation:
1.
The gunman situation: I was obliged

According to the theory of coercive orders, this situation illustrates the


notion of obligation or duty in general. Legal obligation is to be found
in this situation.

There is a difference between the assertion that some in obliged to do


something (a statement of beliefs and motives within which an action
is done) an the assertion that someone had an obligation to do it.

Meaning of 1st notion: without the consequences, I would have done


something different
2.
I have an obligation: 2nd notion

In this notion, facts about beliefs and motives are not sufficient to
warrant a statement that one has an obligation to do something.

The statement that someone has an obligation remain true even if


there is no consequence for disobedience

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That one has an obligation does not necessarily mean that one has
accomplished such an obligation.

Note: theorists like Austin, seeing perhaps the irrelevance of ones personal belief,
fears and motives if one has an obligations to do something, has defined this
notions in terms of Chance or Likelihood that a person having an obligation will
suffer punishment at the hand of others in the event of disobedience. Statements
of Obligations then are not psychological statements but PREDICTIONS or
ASSESTMENTS of incurring evils.
IV.

There are reasons for rejecting the claim that statement of obligations are
mere predictions of incurring evils.
1.
predictive interpretation obscures the fact that where rules exists,
deviation from them are not grounds for a prediction that hostile
reactions will follow or sanctions will be applied,
2.
if it were true that if a person has obligation them he was likely to
suffer in the event of disobedience, then this would be a contradiction
of the notion of obligation.
Note: in normal legal system, where sanctions are exacted for a high proportion of
offenses, an offender usually runs a risk of punishment, so the statement that a
person has an obligation and the statement that he is likely to suffer for
disobedience will both be true together.

Obligation is not to be found in the gunman situation, though the simpler notion
of being obliged to do something may be present.

The statement that someone has or is under an obligation does indeed imply
the existence of rule. Why?
(a)
the existence of such rules makes certain behavior a standard
which is a proper background for such statement.
(b)
The distinctive function of such statement is to apply such a
general rule to a particular person by calling attention to the fact
that his case falls under it.

However, this is not always the case that where rules exist the standard of
behavior required by them is conceived of in terms of obligation. (example:
rules of etiquette or correct speech are rules but they are more than
convergent habits than behavior. They are rules that are followed but they are
not obligations)
V.
What makes rules obligations?
A.
Rules are imposing obligations when the general demand for conformity is
insistent and the social pressure brought to bear upon those who deviate
or threaten to deviate is great.

These rules may be customary in origin: there may be no centrally organized


system of punishments for breach of the rules

Such rules depend heavily on the operation of feelings of shame, remorse or


guilt (rules in this case may be part of the moral obligation)

When sanctions are physical, these are rules that can be classified as primitive
or rudimentary forms of law.

The seriousness of social pressure behind the rules is the primary factor
determining whether they are though of as giving rise to obligations.

- 24 B.

They are necessary to the maintenance of social life (ex. those that restrict
free use of violence, rules which require honesty or truth or require
keeping of promises or what is to be done)
C.
The obligations and duties are thought of as characteristically involving
sacrifice of renunciation because the conduct required by these rules may,
while benefiting others, conflict with what the person who owed the duty
may wish to do.
Note: because of this, vinculum is created (a bond). The first task is to know
whether there is a right. Rights and duties are only attuned if it is good: how do we
know if its good? Because of reason.
VI.
Internal and External Point of View
1.
internal point of view : The way a group assess its own behavior (I
have an obligation)
2.
external point of view the way rules function in the lives of certain
members of the group as seen by a non-member or those who reject
its rules and are only concerned with them when they have judged
that unpleasant consequence are likely to follow violation (I was
obliged to do it).
Note: the external observer would just give an account on how other members
of the group would follow the rules and he would observe that any deviations
by a member of the group can be a sign that hostility is likely to follow.
Violation of the rule for them is not merely a basis for the prediction that a
hostile reaction will follow but a reason for hostility.
VII.
Elements of Law

Primary Rules of Obligations (Customs): society without legislature, court


officials and the only means of control is that general attitude of the group
towards it own standard modes of behavior in terms of which rules of
obligations are characterized.

For a society to live by such primary rules alone, there are certain conditions
that must be followed:
1.
Rules must contain in some form of restrictions on the free use of
violence, theft and deception which human being are tempted but
must be repressed
2.
Those who reject the rules cannot be more than a minority, if not, the
society will be loosely organized.
(ex. in primitive societies, although there are dissenters, the majority live by
the rules seen from the internal point of view)

However, these rules may prove defective in other conditions. What are
these defects?
(a)
Uncertainty the rules which the group lives will not form a
system but will simply be a set of separate standard without
identifying common mark, thus,
(b)
Static character of the rules the only mode of change in the
rules known to such a society will be a slow process of growth.
(c)
Inefficiency in diffusing social pressure by which rules are
maintained. Lack of final and authoritative determinations.

Remedies: supplanting the primary rules of obligation with secondary rules


(The union then of primary rules and secondary rules is what law/core of
the legal systen is)

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Secondary Rules of obligation remedy to the defects of Primary rules.


(a)
Rule of recognition a positive affirmation that something is a
rule of the group to be supported by social pressure it exerts.

In early law societies, they may be more than that an authoritative list
or text of the rules found in written document, carved in public
monument (were reduction to writing of unwritten rules).
(b)
Rules of change: a rule that which empowers an individual or body
of persons to introduce new primary rules for the conduct of life in
the group.
(c)
Rules of Adjudication to empower individuals make authoritative
determinations; do not impose duties but confer judicial powers
and a special status.
Note: these secondary rules shall provide the centralized official sanction of
the system.
Conclusion: under a simple regime of primary rules, the internal point of
view is manifested in its simplest form as the basis of criticism, justification
of demands for conformity, social pressure and punishment. With the
addition of the secondary rules, the range of what is said and done from the
internal point of view is extended and diversified. Concepts like validity,
jurisdiction, legal powers etc are created.

THE FOUNDATIONS OF LEGAL SYSTEM


H.L.A. Hart
I.
A.

B.

C.

The rule of recognition and Legal Validity


Habit of obedience social group habitually obey the orders backed by
threats of the sovereign person or person who themselves habitually obey
no one.
Sufficient condition of the existence of law (according to this theory)
But this theory is unable to take into account some of the salient features of
modern municipal systems (see notes on sovereign and subject)
But it does contain some important aspects of law which can be assessed in
terms of more complex social situation where secondary rule of recognition is
accepted and used for identification of primary rules of obligation (this
situations, a.k.a foundations of legal system)
Rule of recognition
When accepted, both private and officials are provided with authoritative
criteria for identifying primary rules of obligation
Forms of criteria: authoritative text, legislative enactment, customary practice,
general declarations, judicial decisions.
For Rex I, the sole criterion is the fact of enactment.
With the rule of recognition, officials or some private persons will be able to
identify these criteria.
In modern systems, the criteria for identifying law are complex thus, ranking of
these criteria in an order of relative subordination and primacy is done in order
to avoid conflict (common law is subordinate to a statute)
Subordination and Derivation of Criterion

- 25

In our own system, custom and precedent are subordinate to legislations since
customary and common law are deprived of their status as law by statute

They owe their status of law from the acceptance of rule of recognition.

Rule of recognition is not state but its existence, shown in the way in which
particular rules are identified either by courts, officials, etc.

When officials identify a particular rule as law, it gains a special authoritative


status attributed to them by other rules.
D.
Internal point of view and External point of view
1.
Internal point of view characterized by the use of unstated rules of
recognition by courts in identifying particular rules in that system
(expressed: It is the law that)

Expressed through an internal statement (manifests internal point of view


and used by the one who accepting the rule of recognition and without
stating some particular rule of system is valid)

When rules are accepted, the notion of legal validity disappears.


2.
External point of view attitude of an observer who just records the
fact that a social group accepts such rules but foes not himself accept
them (expressed: In the Philippines, they recognize as law whatever
the legislature enacts)

Expressed through external statement because it is the natural language of


external observer who merely states the fact that others accept it.
E.
Validity of rules

Validity means passing all the tests/criteria provided by the rule of


recognition

Related to efficacy: meant that the fact that a rule of law which requires
certain behavior is obeyed more often than not.

Validity is an internal statement; efficacy an external one.

Efficacy and validity do not have connection unless the rule of recognition
of the system includes among its criteria that no rule is to count as a rule
of the system if it is not efficacious (rule of obsolescene).

It is a mistake in neglecting the special character of the internal statement


and treating it as an external statement about official action.

A rule that is valid id a prediction when such a statement is made by a


private person

The rule of recognition providing the criteria by which the validity of other
rules of the system is assessed in an important sense, an ultimate rule:
where there are several criteria ranked in order of relative subordination,
and primacy, one of them is supreme.
F.
Ultimacy of the rule of recognition and supremacy of one of its criteria

Supremacy of criterion: Criterion of legal validity or source of law is supreme if


rules identified by reference to it are still recognized as rules of the system
even if they conflict with the rules identified by reference to the other criteria.
(Notion of superior and subordinate criteria)

Rule of recognition as ultimate rule: in order to answer raised whether a rule is


valid, a criterion of validity must be used
Example: is the rule on color-coding valid? Yes because it is exercised by the MMDA
using the power conferred to it. Is the power conferred valid? Yes because it is in
accordance with a law passed by the congress. Is the law valid? Yes because the
congress enacted it.

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Note: we stop in the last statement because we have reached a rule, which provides
criteria for assessment of the validity of other rules (an ultimate rule)
But to say that a rule is valid because it is used by the courts and other officials (or
that the system is an excellent one) is already moving from an internal statement to
an external one/statement of value. (we are already judging the efficacy of the rule)
G.
H.

It is important to distinguish assuming validity from presupposing the


existence of such rule. Failure to do this obscures what is meant by the
assertion that such a rule exists.
The existence of rule of recognition is a matter of fact.

THE NATURE OF INTERNATIONAL LAW


Hans Kelsen
Thesis: To answer the question of whether international law is indeed law, in the
same sense national or municipal law is used, it is first essential to know the
criterion that would make international law, law.
I.

A.

Two kinds of social order


Social order may be attained in two ways: without or with the threat and use
of force
Coercive order a social order that attempts to bring about the desired
conduct of individual through sanctions
Provides for centralization (see notes below) by instituting tribunals and
executive agencies
In order to induce individuals to a certain conduct, an authority may threaten a
person with an evil (e.i. depriving men of certain possessions such as life,
freedom, property or other values)
These evils are known as sanctions.
Sanctions may be:
1.
transcendental sanctions

provided by religious orders

such sanctions that emanates from superhuman authority (has


transcendental character)

prevailed in primitive societies

being followed by men because of their belief that superhuman powers


would punish violations of it (ex. bad harvest, sickness or death)
2.
Socially organized sanctions

Sanctions to be executed by men according to a social order established


by men.

Have the character of acts of coercion

Carried out against the will of those subject to the order through
employment of physical force

COERCION: a criterion of law: law is coercive order

- 26

B.

Provides a socially organized sanction which can be clearly distinguished from a


religious order or moral order
Law in coercive order is the specific social technique, which consists in the
attempt to bring about the desired social conduct of men through
threat/coercion.
Something that is contrary to law is: illegal, a crime, a tort, and delict.
Non-Coercive Order system of morals that do not provide for
transcendental or socially organized sanctions.

II.
Sanctions: Criminal and Civil
In the national law, there are two different kinds of sanctions:
A.
Punishments forcible deprivation of life (capital punishment) or freedom
(imprisonment)

These are sanctions of criminal law


B.
Civil Execution forcible deprivation of property

Sanctions of civil law


III.

A.

B.

C.

Legal Norm and Rule of Law: The Ought


Rules of law: statements by which the science of law describes its object,
which is the law
Statements made by legal science, which is not a legal authority, hence not
competent to issue legal norms prescribing or permitting human behavior.
Legal norm: statements to the effect that under certain conditions, a
certain consequence, namely, sanctions, ought to take place
Issued by legal authorities
Relation of legal norm and delict
Not cause and effect; not a law of nature (meaning: it does not follow that
when a delict occurs, a sanction will necessarily take place)
When a delict is committed, a sanction ought to be applied OR if delict is
committed, the application of the sanction is legal (means that there is only a
crime if there is a law sanctioning it)
Crimes/delict is actually a creation of the law (contention of diamond) ex. the
case of rape. In primitive societies, rape is not a crime punishable by a law.
Rape only became a crime when a law was made prohibiting it and imposing
sanctions on it.

IV.
Delict

A violation of the law

It is the physical existence which is affected by such act.


The specific
existence of a norm consists in its validity, and the validity of a norm
prescribing or permitting a definite conduct is not affected by a contrary
conduct.

A violation of a something must be possible because if it were impossible to


commit such a thing, then a norm/law to prohibit it would be meaningless.

A delict is neither a violation nor negation of law.

It is a conduct determined by the law as a condition of the sanction.

Without a law, there is no delict.

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V.

VI.

A.

B.

Obligation (Duty) and Right


If the conduct is the specific condition of a sanction, the contrary conduct is the
content of a legal obligation.
I ought to do this: I am obliged to do this.
Right and obligation are opposite terms
1.
to have a right is to be free to behave in a certain manner
2.
not to be under the obligation to behave in another manner.
3.
for me to claim a certain right against another person is to say that
that person is obliged to behave in a certain manner.
Primitive Law
Sanction
are
decentralized (it was left
to the individual whose
interest was violated by
the behavior of another
whether to sanction the
other individual)
Principle of self-help
Collective Responsibility
(collective
thinking

man does not consider


himself different from
and independent of his
fellow men but part of a
group) three best
friends of diamond
See diamonds article for
example
(system
of
revenge/blood revenge)

Developed Legal Order


Sanctions are centralized
(consists
in
the
establishment
of
a
special organ, a tribunal,
competent to carry out
the sanctions)

Collective Security
Individual responsibility
(if I commit a delict, no
one
else
would
be
responsible for that delict
but myself)

Right is defined as the


capacity to have the
legal
possibility
of
instituting a lawsuit and
deals with execution of
sanctions

Responsibility: Individual and Collective


Legal responsibility is different from obligation but their subjects are identical
One may not be responsible over a particular delict yet he may be obliged to
repair the damage (ex. employer may not be responsible for the delict of his
employee yet he is obliged to answer for it)
It is possible that an individual other than the delinquent may be responsible
for a delict.
Individual responsibility sanction is directed against the delinquent,
individual is responsible for his own delict.
Prevails in modern societies.
Collective responsibility only prevails on
exceptional cases. Ex. corporations.
Collective responsibility of the sanction is directed against an individual
or individuals other than the delinquent.

- 27 Note: the difference between an obligation and responsibility manifest itself in the
fact the an individual can be obliged only to behave in a certain way, to his own
behavior but that an individual cannot be obliged that another individual shall
behave in a certain way to the behavior of another.
An individual can be responsible not only for his own behavior but also for the
behavior of another individual.

Examples of collective responsibility:


1.
Law which provides that the husband shall be responsible for the delict
of his child or wife
2.
A mayor being responsible for delict of his constituents

In collective responsibility, individuals are responsible for a delict, not because


they committed it but because they belong to a group family, tribe or state to
which the delinquent belongs.

Exists in the case of blood revenge which is directed not only against the
murderer but also against all the members of his family.

This is established in the 10 commandments

The identification of delinquent with other individuals is the basis of this


responsibility.
VII.
Culpability and absolute Responsibility

This differentiation between culpability and liability is characteristic of a


relatively progressive legal order.
A.
Responsibility based on fault or culpability if the law annexes a
sanction to a certain conduct only if the harmful effect of this conduct was
intended or was brought about by negligence or malice.
B.
Absolute responsibility or liability if law annexes a sanction to a
certain conduct even if the harmful effect is brought about without
intention, negligence or malice on the part of the delinquent.
Note: It is possible that a legal order establishes responsibility of an individual for
delict committed by the other individual intentionally or maliciously or with culpable
negligence. In these cases, absolute responsibility is established
Why absolute responsibility? Because sanctions are directed against individuals who
have not committed the delict even thought there was no intention or malice on
their side. (case of collective responsibility)
VIII.
Force and Monopoly of the Community

Under the national law, the employment or force is a delict unless it is


prescribed or permitted by the legal order; and as a rule, it is prescribed or
permitted by the law only as a sanction.

It is the characteristic of the national law, which determines the conditions


under which force may lawfully be employed. If employed under conditions of
national law, it is legal, otherwise, it is illegal.
Social order reserves the employment of force to the community. Such a social
order establishes a force monopoly of the community.

Force monopoly of the community may be centralized or decentralized.

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1.

2.

decentralized if principle of self-help prevails, meaning, if the legal


order leaves these functions to the individuals injured by the delict, as
in the case of blood revenge.
If principle of self-help prevails, the function of these individuals is
determined by the legal order; they act in a manner authorized by law. If
they employ force, they enforce the law
In such cases, we may speak of a force monopoly of a community: for the
conditions under which and the individuals through which force may be
employed are determined by the legal order constituting the community.
Centralized social order institutes, according to the principle of
division pf labor, physical organs for the execution of the sanctions
provided by law.

IX.
Self-help and Collective Security

Principle of self help is eliminated if the legal order reserves the execution of
the sanction to a special organ, that is, if the force monopoly of the community
is centralized

Two stages in the development of collective security:


1.
characterized by the fact that the principle of self-help prevails, but the
members of the community are legally obliged to assist the victim of a
delict
2.
characterized by the fact that the execution of the sanction is reserved
to a central organ of the community and that means that a centralized
force of the community is established.

Collective security is more effective if the force monopoly of the community is


centralized than if it is decentralized.

Defects of decentralized force monopoly:


(a)
There is no authority, different form, independent of the parties
concerned competent to ascertain in a concrete case the delict
that has been committed (since there is no agreement between
parties, it is doubtful whether the coercive act performed as a
reaction to the delict is really sanction)
(b)
If the individual or group of individuals authorized by law to carry
out the sanction is not more powerful than the delinquent, the
sanction would not be effectively executed.
Ergo: the concept of law is reserved only for a coercive order and no true
law exists as long as the principle of self help prevails because the
establishment of a centralized system of collective security is an essential
requisite of law.
Note: Kelsen does not accept this idea because he believes that social order is
considered as law even if it establishes only a decentralized force monopoly of the
community (where the principle of self-help prevails)
Why?

Centralization of the force monopoly of the community is just a result of a slow


and gradual evolution within which the progress from a decentralized to a
centralized order is an important step, which leads the state from an anarchy to
social order.

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X.

What is important is to distinguish between legal and illegal employment of


force
In the primitive period, blood revenge is considered legal. It is an institution
established by custom. Thus, such coercive order, based on principle of self
help should be considered as primitive law.
Even in centralized societies, self-help exists. Ex. self defense (definition: legal
employment of force by an individual against an illegal employment of force by
another individual)
In primitive legal order, right of self-defense is implied in the principle of selfhelp but under a modern legal order, self-defense is just the minimum of selfhelp.
Retribution and Prevention
A community is only possible if each individual respects certain interest (life,
freedom etc) of others. Meaning, if persons refrain from interfering in the
sphere of interest of others (in the words of Feinberg, avoid causing HARMS to
others)
Law consists in inducing the individual to refrain from interfering with the
interest of others: In case of interference, community reacts with a like
interference in the sphere of interest of the person responsible for the previous
illegal interference. (note: when the community retaliates, the interference
made is legal concept of Mill that power can be legally exercised over another
individual only in order to prevent harms to others)
Also note, what changes is just ideology. In primitive law, the technique used
when a person causes harm to others is REVENGE (or RETRIBUTION). In the
legal order, the technique itself is the same retribution is also used. But such
a concept is now considered as a prevention and not really retribution. Note
that the technique (retaliating) is still the same.

XI.
Law and Peace

Peace is guaranteed by reserving the use of force to the community by


determining the conditions under which only certain individuals, as organs of
the legal community are authorized to interfere forcibly in the sphere of interest
of those subject to the legal order.

Peach then is not the absence of force or a state of anarchy. It is a state of a


force monopoly of the legal community

Without laws, without social order where force monopoly is established, there
will be no peace.
INTERNATIONAL LAW
I.

Definition
International law is true law if the coercive acts of states, the forcible
interference of a state in the sphere of interests of another state is permitted
only as a sanction against a delict.
The employment of force undertaken as a reaction to a delict can be interpreted
as a reaction of the international legal community.

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Note: this only applies on general international law (customary laws) and not
particular laws (treaties)
II.

Reprisal is a sanction of international law because they are reactions


against violations of international law; must be in proportion to the
international delict.
2.
unlimited interference (it may affect all interest of a state)

War
Note: legality or illegality of war depends on whether it is waged by one state
against another unilaterally or it is just a counter war. A war (aggressive war)
waged by one against another state is said to be illegal. A counter war is legal
(it is a sanction).

International delicts
Conduct of states, which is illegal, contrary to international law.
It follows that international law is a system of norms, which prescribe or permit
a certain conduct for states. Question: are there sanctions for these delicts?

III.
International Sanctions
A.
Sanction and Obligation of repatriation

Sanction: an (primary) obligation to repair the moral and material damage


caused by a delict (ex. formal apology)

Repatriation: re-establishment of a situation which would have existed if the


illegal damage has not been caused (a.k.a substitute obligation)

Unfortunately, states may consider itself only to be under an obligation to make


a repatriation only if it admits that it has committed a delict: that is if there is
an agreement of the states concerned.

States are not obliged to comply with any unilateral demand for repatriation
made. There must first be an agreement in order for a concrete obligation to
make repatriation to exist. This is different under the national law no such
agreements exists because we have courts that would determine whether a
delict, and consequently, repatriation is exists.

If a state who refuses to enter into an agreement concerning repatriation of the


moral and material damage caused by a delict will be sanctioned (a coercive
act) by general international law (ex. war, invasion etc.)
B.
Sanction and obligation are different concepts:

Sanction is conditioned by a delict composed of two acts:


1.
the behavior causing the damage and
2.
the non reparation of the damage.

Sanction constitutes a primary obligation to refrain from the behavior causing


the damage and a substitute obligation to repair the damage in case of nonfulfillment of the primary obligation.
C.
International Sanctions as enforcement measures.

Sanctions of International Law can only be enforced by individual states and not
by special organs (decentralization).

International law then has a character of a primitive law because it is not


established by special legislative, judicial or administrative organ but leaves its
functions to the individual organs

Principle of self-help exists because individual states are authorized to execute


the laws (to take the law in their own hands)
IV.
Reprisals

There are two different kinds of forcible interference in a states sphere of


interest which is protected by international law
1.
limited interference (it is restricted to the violation of certain interest
of a certain state considered as a delict unless it has a character of
reprisal

reprisal acts which although normally illegal are exceptionally permitted


as reaction of one state against a violation of its right buy another state.
ex. confiscation of property or non-fulfillment of treaty obligation).

However, not every war of aggression is illegal. Under the Kellog-Briand


Pact, a state may resort to war against another country which violated the
pact or agreement. In this case, the war of aggression is legal, the war of
defense is illegal.

THE ROOTS OF INTERNATIONAL LAW AND THE TEACHINGS OF FRANCISCO


DE VITORIA
Joseph M. de Torre
Gaudium et Spes Vatican statement which said that peace is not simply the
absence of war, nor is it the effect of a despotic domination, rather it defines itself
with all the precision as a work of justice
I.

The Predicament of the Past


Spiral of wars over the centuries had finally crystallized in the Marxist class
struggle
This struggle is a confluence of:
(a)
Machiavellinism (the end justifies the means reprehensible
actions may be justified by their effects);
(b)
Hegelianism (soldier is the universal man in war, mans moral
qualities can be displayed on a heroic scale; war is a rational
phenomenon, an ethical health of nations; a means by which
peoples spirit acquires renewed vigor.
(c)
Darwinism (survival of the strongest in the struggle for life)
Such a situation provoked the following aphorism of the peace movement:
peace at all cost; better red than dead.
In order to restore the balance between these two extremes (militarism and
pacifism), a new concept of peace must be created.
In the past, all nations seem to be in a continuous state of war where peace
was the exception and war the rule a fact rationalized by philosophers:
(a)
Hobbes the natural state of the society is the war of all against
all; the state of nature is solitary, poor, nasty, brutish and
short; man is a wolf man (homo homini lupus a famous formula
of A roman poet Plautus).
(b)
Han Fei Tzu man is evil by nature, only brute force can restrain
the masses
(c)
Machiavelli and Spinoza royal absolutism is the only way to end
mans evil nature.

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Rousseu rejected this view, affirming the natural goodness of man before he is
corrupted by society

A.

Rise and effect of Religious militarism


The glorification of the warrior in the past has degenerated the noble profession
of defending ones country into militarism.
This phenomenon has provided occasion for nations to turn to polytheism an
idolatry in their search for supernatural being that could assist them in thir
struggle against other nations.
Judaism, Christianity and Islam have sustained the original monotheism but
even these religions fell victim to fanaticism that led them into war against each
other and even members of their own faith.

Ex.
(a)

II.

the thirty years war the climax of the war of religion pitting
Catholics, Calvinist, Lutherans and orthodox against each other.
(b)
the Muslim Jihad regarded as self-defense; a combination of religious
fanaticism and political and economic greed under the dignified
umbrella of nationalism and racism (originally, Jihad for Islam is to be
primarily waged wither for protecting the interest of the oppressed and
the weak or to defend oneself against aggression)
Edict of Nantes and the Treaty of Westphalia formation of nations states; each
religious groups were kept in their own territory (cuius regio eius religio).
The partition of religions by territory was also the result of the Enlightenment.
These produced religious indifferentism : all religions are the same and should
be tolerated as long as they do not fall prey to dogmatism or cause social
disturbance
However, religious toleration is opposed by the Catholic church because what
should be maintained is religious liberty (the right to worship God in accordance
with ones conscience, free from external control), not toleration.
Hope for the future
Efforts in the past ended in failure precisely because the means employed were
violent. If violence was used to stop violence, it will generate more violence.
The only way to achieve peace is to abstain from violence
TRUTH ABOUT MAN
(a)
that the dignity of human person is rooted in his transcendence or
capacity of self-surpassing through knowledge and love which
makes human person a subject of rights
(b)
These human rights are the core of human essence and thereby of
human existence, permanent, inalienable, and God given.
(c)
The recognition of this truth about man is the only possible
platform for a dialogue toward peace.
(d)
The inseparable link between peace and human rights
(e)
The truth is a common patrimony of mankind and not exclusive
concern of any particular religion but common possession of all
religions open to the transcendence of God; calls for religious
freedom
(f)
This is an argument based on reason and not based on religion

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The papal discourse combated directly the core of Marxist ideology : the
suppression of individual personal freedom and the total absorption of man into
the community. The is why Marxism is unable to recognize the transcendence of
human person.

MOST fundamental of mans freedom: his orientation toward infinity and


boundless creativity from God.

True freedom: the power to choose without external coercion; balanced by


justice.

Freedom is indispensable for peace but not sufficient because it naturally entails
the risk of misuse, but a risk that must be taken for man to achieve the
common good

Common good is not the greatest goof for the greatest number but the good for
every man and the whole man.
TWO GREAT ENCYCICALS ON PEACE

Pacem Teris: by the natural law, every human being has the right to respect for
his person, to his good reputation.

Populorum Progressio: every man is called upon to develop and fulfill himself,
for every life is a vocation. By the unaided effort of his own intelligence and his
will each man can grow in humanity, can enhance his personal growth, can
become a person.
III.
Recent attempts to promote an Institution of peace
Francis
****Francisco de Vitoria precursor and the Father of International Law

Vitorias teaching is rooted in that of St. Thomas Aquinas

Emphasize human rights as a condition for peace and order, an idea partially
reflected in the American declaration of Independence.

Human rights are rights derived from God

International attempts to institutionalize the ideas of Francisco de Vitoria:


A.
The League of Nations
B.
United Nations -- promulgated the Universal declaration of Human Rights
as a juridical guarantee of peace.

During these times, the old formula if you want peace, prepare for war was
replaced with if you want peace, respect human rights

The list of human rights starts with the right of the unborn. Thus, the greatest
destroyer of peace today is abortion because it is not just a war against the
child, it is a direct murder by the mother herself.

In Populorum Progression, it was said that DEVELOPMENT is the new name for
PEACE. Development is defined as the total promotion of man based on an
integral humanism

Development is the philosophical basis that can be accepted by all religions. It


is universal not secularist.

The existing inequalities among human beings are not supposed to be


adversarial or dialectical in the Hegelian-Marxist sense but complementary and
harmonizable.

Cooperation and solidarity are natural extension of the underlying unity of all
mankindshould not be confused with pacifism or peace at all costs or
irenecism of compromise at the expense of truth.

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Only by channeling out aggressiveness toward ourselves in the struggle against


selfishness that we can really bring about peace.

The Catholic Church and slavery

catholic means universal in outlook, at the same time, involved in the reality
of actual peoples and communities

Christianity, with its radical natural law affirmation of the fundamental equality
and dignity of all men, fermented social change (especially in the institution of
slavery that was espoused by Aristotle)

The idea of slavery (and forced labor) made war necessary in order to conquer
new land and new slaves.

Slavery made mercantilism and static economy the prevailing doctrines.

These ideas were refuted by de Vitoria

However Christianity was not able to flourish initially due to universal


acceptance of the Aristotelian fallacy. It commenced a process of cultural
transformation, gradually humanizing slavery war, poverty etc. by favoring the
introduction of practices and laws to this effect.

Christianity always defended and protected the dignity of man and his labor.

Revolutionary ideas ushered in, not due to Lockes liberal reaction to Hobbes
absolutism but from the work of 16th century Spanish economist like de Vitoria.
IV. Works of de Vitoria

He courageously expounded the fundamental equality of all human beings and


acknowledged that the ultimate sovereignty of the people is given to them buy
God.

Spelled out the inviolable rights to life, to liberty, and to self-rule including the
right to private economic initiative and to participation in public life.

Due to Vitorias lectures, Pope Paul III authorized the excommunication of those
colonists in the New World who deprived the natives of life, liberty or property
thus, Charles V promised to promulgate the New laws of the indies to
guarantee rights

It was Vitoria who set in motion the revolution of human rights which
crystallized in modern democracies and contemporary international
organizations.

His philosophy on fundamental equality of all persons is rooted on a Christian


theology that illuminated the natural law, witnessed by human reason.

The PHILOSOPHY OF ORDER Vitorias philosophy focused on the human


person and human society. Vitorias principles:
(a)
There is no such thing as a right to war, only right to self defense
(b)
All men are equal despite their inequalities
(c)
Men can never lose their fundamental rights even if they fall into
sin
(d)
There is no divine right of kings
(e)
Rejected theocratic imperialism and in its place advocated a
universal community of nation ruled by natural law (law of nations
ius gentium)
B.
The Philosophy of Order

A basis and justification for the power to govern

A rational ordering, not arbitrary or voluntaristic

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C.

D.

The power bestowed on rulers by the people but not by the people as numbers
but to the people as a community of persons aware of their subjective
responsibility and dignity as beings open to infinite transcendence and objective
value.
Accdg. To Jacques Maritain, there is no need to add that the will of the people is
not sovereign, that what would please the people would have the force of law.
The right of the people to govern themselves stem from natural law. An unjust
law, even if it expresses the will of the people, is not a law.
Based on natural law (ex. no one is a slave by nature Aquinas)
Philosophy of power (Hobbes, Rousseau etc)
Continued from the French revolution on to modern individualism (democracy
of the individual) and achieved in totalitarian socialism
In the declaration of the rights of man (product of French revolution) it is state
that the law is an expression of the general will not a rational ordering. Such
thinking would lead to democracy of tyranny
Problem with this declaring law as expression of general will: men are deprived
of a point of reference beyond and above themselves, thus, men can now turn
to one another as wolves and try to make a Leviathan, an absolute state to
impose order on all.
Socialist or collectivist forms of Philosophy of power: Fascism, Nazism, etc.
Vitoria and his followers
Grotius should not be called the Father of international law for he merely
utilized Vitorias thesis on just war. Following Vitorias thoughts, Grotius roots
natural law on God as the author of human nature and natural sociability
Pufendorf enumerated the natural duties of man which he based on Vitorias
teachings:
(a)
to know God as Supreme Being
(b)
To know himself and his own nature well (to acknowledge
dependence to God)
(c)
To seek ones esteem and honor
(d)
To seek wealth with moderation
(e)
Subject passion to reason
(f)
To exercise just self defense

Conclusion:

Vitorias ideal: a community of nations in pursuit of peace culminated in the


formation of the United Nations.

Moral principles and guidelines are like human rights, universally valid and
inherent in human nature.
To achieve our goals of peace, an in-depth stuffy of the concept of law must be
undertaken with a thorough knowledge of history.

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- 32 forever). Case of Bonham: practicing medicine without license, EDWARD COKE said
that parliament has no right punishing the physician by saying that when parliament
is against the common right, common law must control it. CALVIN CASE: lex
aetarna or law of nature is infused into ones heat for preservation and direction..
WILLIAM BLACKSTONE: WILL OF THE MAKER, LAW OF NATURE. GEORGE MASON
all acts of legislature contrary to natural right and justice are void)
5 Modern jurisprudence: enlightenment; LAWS are man made (due to social
contract)
The jurisprudence of enlightenment is an individualist utilitarian
positivism: no room for institutions, family and other social groups between the
individual and the state (merely an exercise of WILL and not REASON) ex. ROE vs.
WADE; CRUZAN vs. DIRECTOR, MISSOURI where unborn and dying can be deprived
rights.

NOTE ON JUSTICE AND FINNIS


Rawls may be a fan of Aquinas: in Summa, justice is a habit whereby a man renders
each one his due by a constant action and will/choice. Justice is one of the more
superior virtues because with it, you exercise the will (rationality) an exercise of
freedom ergo, RAWLS may be supporting natural law.
communitative justice : consist of rendering to a person one to one
(follows arithmetic progression)
distributive justice rendering justice to many: concerns itseld with
distribution of common goods proportionality to the many (observe
geometrical proportion)
What is our task? To know what is due to others. DUENESS : concept of entitlement
where a person has some authority over you. Produces respect
EQUALITY: JUSTICE TEMPERED WITH MERCY
50 QUESTIONS
1 for Justice Thomas, natural law is the higher law philosophy of the Founding
fathers and BEST defense of liberty and of limiting government; best defense of
judicial review. Anyone who cares about life cares about natural law.
2 not everything legal is right, natural law makes a difference (natural law promotes
life)
3 natural lawset of directions written into our nature so that we could discover
through reason how we ought to act.; REVELATION would enable us to know with
certainty how we ought to act. NATURAL LAW IS A GUIDE FOR INDIVIDUAL
CONDUCT; SERVES STANDARD FOR THE LAWS ENACTED BY THE STATE.
4 NATURAL LAW existed before Catholicism and its principles are rooted in nature
and knowable to reason (SOPHOCLES ANTIGONEthere is a higher law alive and

6 4 Aquinas: LAW is an ordinance of reason for the common good.


Eternal Law: rational orderliness of the universe; the divine reasons conception of
things
Natural Law: the participation of the rational orderliness of the universe in the
rational creature; because of this, we discern what is good and evil.
***MORAL VIRTUES: matters that are ordered to GOD as their end
MANS BASIC INCLINATIONS: to seek the good (highest Good: eternal happiness
with God); preserve himself in existence preserve the speciesunite sexually: live
in the community with other men: to us his intellect and will.
HUMAN LAWparticular determinations devised by human reason:
DIVINE LAW law given by God (because we are not perfect)
*** for enlightenment, they organize the society as if God do not exist. Put a line
ED/NH
7 general principles are equally known to us but as to proper conclusion of the
practical reason, neither truth or rectitude are the same for everybody (why the
difference: because of obstacles like perverted passions, evil disposition etc
8 Human law is integral in part of Gods Plan, designed to promote the common
good and help man attain his highest end of happiness with God. HUMAN LAW MAY
BE DERIVED FROM CONCLUSION OR DETERMINATION (law of nature states that
evil doer must be punished)
FUNCTIONS OF NATURAL LAW: constructive (natural law as a guide to promote the
common good) and protective (natural law provides a shield against laws that
violate the natural law
9 Enlightenment, the purpose of law is to protect individual rights: greatest good for
the greatest number FOR AQUINAS, there is a common good more than merely the
total of individual good thus HUMAN law cannot be directed merely for private
welfare; laws should be made to suit the majority instances. COMMON GOOD is the
justification of CAPITAL PUNISHMENT (common good is better than the particular
good of One person. (COMMON GOD: the sum of conditions of social life which allow
social groups and their individual members relatively thorough and ready access to
their own fulfillment.

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10 The rational plan of divine providence demands that other creature be ruled by
rational creatures. Animals dont have rights. Man is a person because he is an end
to himself and not used for perfection of other beings.
11 Aquinas prefers monarchy the rule of one man is more useful than many for
achievement of unity of peace.
12 unjust law is not a law at all. A law can be unjust by: being contrary to human
good and opposed to Divine good. But it doest mean that it will not be followed,
when the law is hurtful to the general welfare, it should not be observed.
13 political absolutism or autocracy; Political/philosophical relativism (a way of
thinking that there are no absolutes): democracy. The purpose of human law is to
lead men in virtue not suddenly but gradually if not, greater evils will be produced.
14 human law cannot cover the entire field of virtue and vice
15 Before resorting to interpretation, original intent of the constitution must be
discovered (Mac Lelan)
16 provisions of the constitution have natural law content
17 judges can use natural law if the law is unjust (burdens are imposed unequally)
and void when the conflict between law or precedent and justice is intolerable or
unendurable.
18 universal skeptism is absurd; one who says we can never be certain of things
contradict himself.. I think therefore I am, cognito ergo sum. Those who say
otherwise have no ultimate explanation of the meaning of life.
19 the object of practical reason is good. This principle is self evident. We have
active intellect whose sole work is to throw light on the sensible image or phantasm
to make the universal stand out from the particular.

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